ICANN Ombudsman Blog Creating Dialogue Affirming Fairness

November 20, 2012

At Large White Paper on Future Challenges ”Making ICANN Relevant, Responsive and Respected”

Filed under: Uncategorized — Chris LaHatte @ 7:12 pm

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.

 

 

November 18, 2012

Busted Mugshots-Case 12-00236

Filed under: Uncategorized — Chris LaHatte @ 7:21 pm

Office of the Ombudsman

Case 12-00236

In a matter of a Complaint by (Person)

Report dated              19th November 2012

Introduction

This investigation is about a complaint to my office about content on a website called Busted Mugshots, which can be found at http://www.bustedmugshots.com/

Facts

The essence of the complaint is that a photograph of a person was placed on a website kept by Busted Mugshots of a young person aged then 20, who was stopped by the police in a city in the United States because he was drinking an alcoholic beverage. The only step taken was to photograph him, and he was not charged with any criminal offence. Somehow Busted Mugshots obtained a photograph of him and feature this on their website. The person only became aware of this relatively recently because he resides in Europe, and is a citizen of a country in Europe. In the intervening period he had obtained qualifications as a professional person but to his dismay, even after graduation and in applications for jobs he has been shown the page with his photograph, which has been very prejudicial in obtaining employment. He therefore asked Busted Mugshots to remove the photo, and was told that he had to pay either $68 or $108 if he wanted to be removed from the site, or show court documents, presumably showing aquittal. He could not show the court documents because he was never charged with any offence but only photographed. He instructed a lawyer to help facilitate removal of the photograph, but Busted Mugshots simply repeated demands for money and court documents. The lawyer then contacted me to see if I was able to help.

Investigation

To undertake this investigation I have contacted Busted Mugshots to explain that I had no jurisdiction to compel them to do anything, but that I thought was very unfair to maintain the posting of a photograph of someone at age 20 who had never been arrested, and was suffering the consequences. When they replied, Busted Mugshots simply asked me to provide my credit card details and the court documents. I explained again that it was the young man who wanted his details removed and that there were no court documents. They simply repeated the demands and declined to remove the details.

Issues

The issue which I am required to investigate is the fairness of maintaining the posting on the website.

Jurisdiction

This is a matter where I do not have any jurisdiction to intervene. It is very clear that the ombudsman does not have any power over the contents of the website. Normally when I receive such a complaint, I tried to advise the complainant over the appropriate place to make such a complaint. In some cases I do ask if I can facilitate a solution as between the parties, by mediation or other appropriate techniques. It was for this reason that I contacted Busted Mugshots and asked them to remove the photograph and posting about the young man. I was unable to facilitate any resolution.

Reasoning

In the course of this investigation I attempted to facilitate resolution as between the parties, because the continued posting of the result appears to be quite unfair. A momentary lapse of judgment for a young person should not be maintained as a posting on the website 9 years later. Because the young person resides in Europe it is difficult for that person to bring a legal proceeding to require removal in the United States, and extremely expensive. Even the money demanded for removal would in some jurisdictions be regarded in simple terms as blackmail. Certainly the lawyer who referred the matter to me cited a number of references to law which in his view were consistent with blackmail.

Result

I am not able to make any finding about removal, although I have no jurisdiction of course to require removal. But central to the practice of an ombudsman is the principal of fairness. Is it fair to keep this photo posted for 9 years, when the young person did not receive any criminal conviction? Is it fair in the circumstances to require him to pay money to have this removed? I suspect most will find the practice of this website owner distasteful at best. I regret that I do not have any jurisdiction to make a formal finding of unfairness. But I hope that Busted Mugshots will read this report, search their conscience, and remove the post.

Chris LaHatte

Ombudsman

 

Speaking Truth to Power-The Ombudsman in the 21st Century

Filed under: Uncategorized — Chris LaHatte @ 3:28 pm

Last week I had the privilege of attending the 10th World Conference of the International Ombudsman Institute held at Wellington New Zealand. This ran from Tuesday to Friday and was attended by ombudsman from throughout the world. Most of the ombudsman who attended are either the ombudsman or members of the staff of national ombudsman from many countries, although there were a number who like me, work within an organisation.

It was great to be able to attend a conference in my own city, where the costs of transport were just my bus tickets. But more importantly, this conference which is held every 4 years, enabled me to meet and learn from many very experienced ombudsman and develop contacts throughout the world. The papers were presented were of the highest standard, some by leading academics and others by very well-known ombudsman. In New Zealand we are privileged to have Dame Beverley Wakem, the New Zealand Parliamentary Ombudsman, as the President Of the International Ombudsman Institute. The Institute is based in Vienna, Austria, and organises the international conference every 4 years. It coincides this year with the 50th anniversary of the founding of the ombudsman by the New Zealand Parliament in 1962. As a New Zealander I am proud to say that this was the 1st appointment in a common law jurisdiction and the 1st in an English speaking country. I am humbled to be a small part of this important institution, albeit as an observer from ICANN. The conference was opened by the Honourable John Key, Prime Minister of New Zealand, an indication of the status of the New Zealand Parliamentary Ombudsman. The Mayor of Wellington, Celia Wade Brown also spoke. They were very supportive of the work of ombudsman in general, emphasising the importance of the neutrality and ability to provide persuasion where needed. We were also privileged to have a former Prime Minister of New Zealand, the Honourable Helen Clark, who is now Administrator of the United Nations Development Program, who is also a big supporter of ombudsmen, and of course the United Nations itself has a big ombudsman program as part of the structure.Over the 4 days of the conference we heard from many other speakers, on issues such as the role of the ombudsman in protecting and promoting human rights, the role of the ombudsman in freedom of information issues with an emphasis on the need for transparency and openness. Both these issues have been discussed in the ICANN context, and in particular at the Toronto meeting recently. ICANN of course has a strong policy in relation to transparency and openness, which I discussed with some of my colleagues. The issue of human rights has of course also been raised in the context of the NCUC Policy Conference: ICANN & Internet Governance: Security & Freedom in a Connected World

Other sessions at the conference were also important in terms of operation of an ombudsman’s office. Andre Marin, the Toronto ombudsman told us about the use of social media in the context of enabling outreach in new and exciting ways. At the same session we also heard about the challenges faced by the ombudsman of The Gambia, Alhagie Sowe, in reaching out to villagers outside the main settled areas in his country. His presentation reminded us that not all ombudsman operate in the switched on interconnected world of a 1st world country.

Like many such conferences we were spoiled for choice with the alternative sessions, and I am looking forward to reading the papers which will also be available online shortly. I feel refreshed with new ideas and new approaches, of direct benefit to the work which I do.

 

November 7, 2012

Sharpening Your Teeth

Filed under: Uncategorized — Chris LaHatte @ 8:35 pm

I have had the privilege of attending the Sharpening Your Teeth Program run by Andre Marin, the Ontario Ombudsman, and run from 8th and 9th November in Wellington as part of the International Ombudsman Institute 10th annual conference in Wellington New Zealand. Andre Marin has run this calls for many years but it is still fresh and alive and useful. I will add more once I have completed the course, and add some links to his website and some of the reports which he has written. Hi main site is http://www.ombudsman.on.ca/Home.aspx

November 6, 2012

Internet statistics presentation in Wellington on 6th November 2012

Filed under: Uncategorized — Chris LaHatte @ 5:52 pm

Three national and international experts spoke

  • Professor Jeffrey Cole, Director, World Internet Project on “Trends, Fads & Transformation: The Impact of the Internet.”
  • Professor Allan Bell and Philippa Smith, Institute of Culture, Discourse & Communication, AUT University on “NZ – An Internet nation?”
  • Statistics NZ on the results of the Internet Service Provider Survey: 2012

Dr Cole’s website says “Cole founded and directs the World Internet Project, a long-term longitudinal look at the effects of computer and Internet technology, which is conducted in over 25 countries. At the announcement of the project in June 1999, Vice President Al Gore praised Cole as a “true visionary providing the public with information on how to understand the impact of media.”  Ten years into the project, the World Internet Project, through its unique data on Internet users around the world, is the leading international project examining the ways in which our social, economic and media lives are changing. Cole regularly presents trends and insights of the project to the White House, FCC, Congress, Department of Defense and to governments around the world. On the corporate side, Cole advises Microsoft, WPP (Group M), Ericsson, Sony, Time-Warner, AT&T, AARP and others in their traditional and digital media strategies.”

These statistics from the New Zealand statistician have been collected for some years to form a longitudinal study of Internet use in New Zealand. From their presentation we learned that more than half of New Zealanders are now accessing the Internet via a mobile phone, and that the total number of Internet connections via a mobile phone increased by a third to more than 2.5 million over the past year. Smartphone use is rising quickly, and people are increasingly connecting to the Internet using these devices wherever they go Internet service providers have increased their data caps, so there is also more choice and flexibility when surfing the web on fixed broadband connections. The total number of subscribers with data caps of 50 gigabytes (GB) or more increased by almost 800 percent this year, while those with no data caps increased by more than 270 percent. The average subscriber uses an estimated 16GB of data per month.  This is almost double the monthly use this time a year ago. (from their website and cited at the talk)

Dr Cole followed with a discursive and fascinating overview from an international perspective, talking about diverse issues such as how we access the Internet, and provocative statements such as the use of personal computers is shrinking rapidly in favour of smartphones and tablets.He suggested that Internet usage in both the United States and New Zealand was approaching saturation because those who do not use the Internet are doing so by choice. At least one member of the audience disagreed with this and pointed out that he considered that a significant percentage of the population did not have access to the Internet because the cost was too great. This has become important because of the government policy that much government business and access by the public to government will be online. It creates an interesting question as to how such access should be provided for those unable to afford to do so.

For me the fact that someone is taking the trouble to gather the statistics on such use both in New Zealand and internationally is significant. At ICANN we tend to concentrate on our primary role in relation to the domain name system, but of course the bigger picture is access to the Internet, fundamental before we can even worry about whether the domain name system is working. But our role in keeping that address system open and secure and safe is perhaps the next question.

 

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