ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

September 29, 2012

UN Report on Broadband

Filed under: Uncategorized — Chris LaHatte @ 7:17 pm

I recently read the UN report on broadband use across 177 countries  (http://www.broadbandcommission.org/work/documents.aspx). The extent of coverage of Internet connections is now staggering. The number of internet users is now 2.26 billion at 2011 and no doubt already greater.The report analyses the economic impact on growth particularly in developing countries and the impact of the spread of broadband. The authors identify the substantial increases to GDP which can be attributed directly to access to broadband, and emphasise the substantial contribution that smartphone technology has made to Internet access particularly in Africa. The report as a work of considerable importance although curiously there is little mention of ICANN and its role in the domain name system, which is essential to internet usage, and considerably more so as the numbers of internet users increase. The importance of the IDN system enabling countries to use their own characters rather than Roman script is discussed, but without mentioning the role of ICANN in developing such a powerful and enabling tool. The sole reference to ICANN as a footnote on page 63 referring to an ICANN report on IDN domain names. I thought this was a curious omission in an otherwise comprehensive and interesting report.

September 25, 2012

Investigation report on Email

Filed under: Uncategorized — Chris LaHatte @ 5:00 am

Office of the Ombudsman

Case 12-00154

In a matter of a Complaint by AB

Determination dated 25th September 2012

Introduction

The office of the Ombudsman has jurisdiction to consider issues of unfairness between ICANN and supporting bodies. In investigating a complaint that such unfairness exists, my practice is to look first at whether mediation is possible, or other dispute resolution techniques. However in some cases this is an appropriate, and in this case this would not have bee possible. I have therefore proceeded to prepare a report, which in any event is the request by the complainant.

Facts

The complainant made contact with the office of the ombudsman to say that he had received a spam email from the former CEO, and that the email was unwelcome and sent to him personally, which he considered intrusive and unnecessary. The complaint was made promptly and said

“I wish to file a formal complaint about the below SPAM originating from ICANN’s servers. Since Mr. Beckstrom has left yesterday it is clear that he cannot have had access to ICANN infrastructure any longer.  If however this were the case, one would have to consider YET ANOTHER serious breach. In any case I do not wish to receive communications of any kind from this person, Mr. Beckstrom. Please confirm receipt of this complaint, commence an investigation and advise me of the outcome.”

He later said that “A *FORMER* staff member, sent a very irrelevant and unsolicited email to a large number of recipients, probably to the list of all email addresses he ever had collected, by whatever means, thus targeting individuals who most certainly did not wish to receive emails from him and in particular not at the addresses used.”

He also commented that the email was sent to his professional email address, not the one that he used for ICANN purposes.

Jurisdiction

In any complaint I must consider whether I have jurisdiction under my bylaws and framework to undertake such an investigation. In this case there is little difficulty in finding jurisdiction because it certainly would be regarded as unfair to send spam, or unwelcome emails, to supporting persons of ICANN from ICANN itself. In considering this issue of jurisdiction, I am not prejudging an issue of whether or not the email sent was in fact spam. I have assumed that there is something which the complainant considers unfair and proceeded on that basis.

Investigation

To undertake this investigation I sought comments from the complainant because I was anxious to ensure that this was a serious incident of unwanted email. The complainant said on a number of occasions that he was offended by receiving the email and that it was inappropriate of ICANN to permit this to be sent through the ICANN mail server. I also asked the complainant to comment on why he thought that this was spam and why he thought it was unfair that the email had been sent. At that stage of the investigation I was unsure as to the number of addressees, although the complainant was quite adamant that he considered this spam and unwelcome. I attempted to engage in a discussion about why this was spam, under the ordinary definitions, but he declined to comment other than to say was spam because it was unwelcome and too widely broadcast.

The next part of my investigation was therefore to find out the extent of the publication and determine how widely distributed this had been. I therefore discussed this with ICANN staff to find out the background behind the sending of this email. My enquiries showed that this email had originated during the CEO’s final days at the Prague meeting, in the context of many documents being produced, many formal meetings and farewells and a complex handover. My enquiries showed that the email had been sent to between 50 to 60 people, who were regarded as key people in relationships with ICANN. I was told that the CEO had a strong desire to say something about his successor and wanted to pass this on to those key people. There were about 5 groups, and the email was actually tailored for each one. The email was sent out over the period of June 30 to July 1, although some were delayed apparently due to some errors in the draft which had to be corrected. This meant that some were actually sent the following day, which was of course after Mr. Beckstrom had completed his term. This appears to explain why the complainant in this case received an email on the 2nd July.

Reasoning

After discussing this matter with the ICANN staff, it is clear that this email was in fact not spam in the common meaning of the term. Spam is usually considered bulk emailing sent indiscriminately to very large numbers of recipients. By way of contrast, 60 emails specifically tailored for groups of recipients is hardly unusual within a large organisation such as ICANN. I have no difficulty in considering this to be an appropriate use of the ICANN email system, particularly when it is coupled with a short (understandable) delay, carrying this over to the day after the former CEO’s appointment finished. If there had not been the delay, then the email would have been sent before the CEO formally completed his contract. The delay was not any fault on the part of the CEO, who had simply asked his staff to prepare and send the email.

The other limb of the complaint was that this email was sent to the complainant’s professional address rather than the one he used for ICANN purposes. It is difficult to say how this could be unfair, although I did specifically ask the complainant to comment on this aspect. If it had been sent to his ICANN email address, then there would be nothing at all unusual about such an email.

Of course, it can be irritating to receive unwanted messages. The complainant has made it clear that this was a message he did not want to receive. He may have had particular views which did not coincide with the former CEO, but I find it difficult to find unfairness in sending such an email, which was intended to make a courteous farewell and introduction to the new CEO.

In considering this matter I have also looked at the contents of the email, the subject of the complaint. It does not appear to be anything controversial save for a conventional message of the sort which would be expected from a senior executive completing a contract, and thanking participants and staff. This also assists in my finding.

Finally, I record that I sent a draft of this report to the complainant, but the complainant did not add anything. I have also sent a copy to the ICANN staff who were responsible for the email, and who also did not add anything.

Result

As a result of this investigation I do not uphold the complaint, and it is therefore not necessary to refer this matter to the ICANN Board for any further action.

Chris LaHatte

Ombudsman

September 19, 2012

Ombudsman Training Vienna September 2012

Filed under: Uncategorized — Chris LaHatte @ 6:56 am

As part of my commitment to training and professional excellence in the ICANN ombudsman role, I have just completed a course run by the International Ombudsman Institute, and taught by the faculty of Queen Margaret University of Edinburgh. This has been a three-day course covering a wide variety of topics relevant to good practice for an ombudsman. One of the features about this Institute is that the members are almost entirely classical ombudsmen who operate within the government structures of the various countries. The ICANN ombudsman is of course different because of the role within a multi-stakeholder organisation. Nonetheless many of the issues are very similar including the cross cultural issues, diversity issues and good governance issues.

The course ran from Sunday, September 16, 2012 through to Wednesday, September 19, 2012 and was supported by staff from the Institute. Our host was the Austrian Ombudsman Doctor Peter Kostelka, who is the Institute Secretary-General. The Institute is supported by the Austrian government as part of a commitment to international practice of ombudsmanship. They provide the offices for the Institute, in a 17th century palace in central Vienna. The Secretariat staff participated and supported the training and made us all feel most welcome and the range of participants was from all around the world.  There were many from Europe, and we also had participants from South Africa, Botswana and Sierra Leone. Others came from as far as Hong Kong, Thailand and Papua New Guinea. I had the pleasure of meeting again two participants from Pakistan, who I met at the Hong Kong training earlier this year. From Europe we had representatives from Northern Ireland, the Ukraine, Belgium, Gibraltar, Spain, Portugal, Slovakia, Lithuania, Italy, Slovenia and Estonia. From South America we had participants from Argentina, and Peru. We also had a participant from Canada. The course was conducted in English, which was something of a challenge for some of the participants but they rose to the challenge and often provided most thoughtful insights. It is always useful to share in different cultural perspectives on our work as ombudsman.

The course itself was diverse and consisted of presentations with participation and group sessions. We covered such ground as operating within legal frameworks, complaint diagnosis and assessment, managing conflict and challenging behaviour, preventing things from going wrong. We also covered areas such as investigation planning and reasoning, gathering and managing evidence, effective interviewing critical thinking and decision-making, making proportionate recommendations and decision writing. We had a number of useful panel discussions about an ombudsman office, its management and functions. On the 2nd day of the course we also had a formal dinner in the palace ballroom of the Institute office. It was a most pleasant dinner and a wonderful 18th-century setting.

The course such as this is essential to maintain knowledge of current thinking about the practice of an ombudsman. The academic staff at Queen Margaret University specialise in the academic study of the office of an ombudsman and have extensively trained many in the United Kingdom, and now are extending this training particularly to Malawi. So we had access to some of the leading thinkers and academic researchers, a real privilege.

For me, meeting so many of the international colleagues was a real privilege and I hope I have forged some good international relationships. I also have the opportunity to explain the ICANN multi-stakeholder model. There was very real interest in this as a governance structure, and they could immediately see why an ombudsman was necessary within such a complex model. So in conclusion, this was a most worthwhile course and I have learned a great deal.

 

 

 

September 5, 2012

Neutrality

Filed under: Uncategorized — Chris LaHatte @ 8:44 pm

One of the central tenets of the office of an ombudsman is that of neutrality. This is emphasised in the International Ombudsman Association Code of Ethics which says

Neutrality and Impartiality

The Ombudsman, as a designated neutral, remains unaligned and impartial. The Ombudsman does not engage in any situation which could create a conflict of interest.”

See http://www.ombudsassociation.org/about-us/code-ethics

The importance of this neutrality is that when a complainant comes to the ombudsman with an issue, the ombudsman cannot forming any opinion until the investigation is completed. In my view it goes further. There must be particular care in an investigation, when information is sought from affected parties, that the questioning does not disclose any particular bias and that the questions are purely a fact or opinion seeking exercise.The requirement for neutrality however, extends beyond the investigations. There is no doubt that as the result of an investigation that an ombudsman may from time to time deliver a strong view about conduct which they regard as unacceptable. That is of course a most important part of the role of an ombudsman.
So the complainants must have confidence in the office of the ombudsman in that they must not be deterred by any views expressed by the ombudsman in other forums. This effectively means that an ombudsman should be very careful not to publicly disclose any particular political preference or views about issues which are likely to come into the office, such as gender or race or sexual orientation. An ombudsman is of course a human being, and may hold political views. But it would be difficult if those views were to be advocated in any official or semi official role.The issue of bias in the context of judicial decision-making has attracted considerable attention in many courts. The English decision of In re Pinochet,  [1999] UKHL 1; [2000] 1 AC 119; [1999] 1 All ER 577; [1999] 2 WLR 272 (15th January, 1999) says in ringing terms

“The fundamental principle is that a man may not be a judge in his own cause. This principle, as developed by the courts, has two very similar but not identical implications. First it may be applied literally: if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.”

It is the second part of this test which is important to the office of an ombudsman. While the first test of course still applies, conduct of an ombudsman which gives rise to a suspicion that they are not impartial may compromise the decision. But an ombudsman seldom delivers a binding decision in any event, and in many instances will not have the power to impose a binding decision. The recommendation or report will often simply have moral authority behind it, and the requirement of neutrality is integral to the necessary moral authority.If the ombudsman is the conscience of an organisation, then they must be seen to maintain no preconceived bias.

So in my view it would be wrong for an ombudsman to make a public statement for or against government policy. This was seen in a dramatic fashion in Australia where the Federal Ombudsman was obliged to resign following his admission that he scripted questions for Australian Greens  to ask at a parliamentary inquiry in May. The link to this is at
http://www.theage.com.au/national/embattled-ombudsman-allan-asher-resigns-20111020-1m9hf.html#ixzz25ez8tlpB

In that example, the issue was in fact the funding for the ombudsman’s office. He was frustrated by the perceived shortfall in funding created by additional responsibility, a stance which was then raised by members of Parliament, whom he coached to ask the questions. So while his motive was in fact supportive of his office by seeking better funding, by using a member of a political party to advocate his cause he compromised his neutrality.

The same principle applies for an organisational ombudsman or an ombudsman such as the ICANN ombudsman. An ombudsman for a large organisation which among other things manufactured armaments for sale could not become an advocate for pacifism. This might be a genuine and deeply felt belief, but would compromise their work within their company. The correct stance would be to say nothing on the subject, despite personal views.

So, if during the course of an investigation, questions are put to someone they must be carefully framed so that they do not disclose any preconception of bias or of a particular stance having been taken. This requires real skill, and can be frustrating for complainants but is essential to ensure that the essential tenet of neutrality is maintained.

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