<html>
<head>
<meta content="text/html; charset=windows-1252"
http-equiv="Content-Type">
</head>
<body bgcolor="#FFFFFF" text="#000000">
David<br>
<br>
Perhaps I might offer a perspective.<br>
<br>
First of all, I am not personally arguing for either solution, only
to remark that a solution is gravely needed.<br>
<br>
However, for those arguing against an independent inspector general,
perhaps you might consider the differences in the role (and thus the
advantage of independence) as follows :-<br>
<br>
1. The Ombudsman, strengthened or otherwise is not truly
independent.<br>
--------------------------------------------------------------------------------------------------<br>
<br>
A truly independent review should be funded otherwise than directly
by ICANN. This aspect has immense implication for organisational
fairness and effectiveness in carrying out the role. <br>
<br>
Furthermore ICANN can (and HAS) changed its bylaws to avoid scrutiny
and review (see the changes directly made as a result of the
decision in .XXX to make the IRP 'deferential'.)<br>
<br>
Despite the fact the current Ombudsman is of the highest calibre in
his field, he is paid by ICANN. <br>
<br>
See Scotland's 'temporary sheriffs' case (Starrs -v- Ruxton)
<a class="moz-txt-link-freetext" href="http://bit.ly/1Kfq4xx">http://bit.ly/1Kfq4xx</a> and the Guernsey's Bailiff -v- UK (McGonnell
v- United Kingdom)
<a class="moz-txt-link-freetext" href="http://ukconstitutionallaw.org/2011/09/22/mcgonnell-the-bailiffs-of-jersey-and-guernsey-11-years-on/">http://ukconstitutionallaw.org/2011/09/22/mcgonnell-the-bailiffs-of-jersey-and-guernsey-11-years-on/</a>
The latter case DID in fact trigger a consitutional earthquake in
London. [See important PS at the end]<br>
<br>
Now, I explicitly do not suggest the current office holder is
subject to 'actual bias' but on the important fundamental rights
priniciple of 'apparent bias', so long as ICANN pays his 'gig fee'
the office cannot be considered independent.<br>
<br>
<br>
<br>
2, The Ombudsman's role is that of mediator<br>
--------------------------------------------------------------<br>
<br>
And the current office holder is very good at that. <br>
<br>
In otherwords, an Ombudsman acts upon a complaint from an individual
(or possibly a group) that ICANN or a part of it has done something
it shouldn't. He then tries to bring the parties together.<br>
<br>
But that is a completely different approach to a truly independent
inspector, funded otherwise than by ICANN who has powers to inquire
into every aspect of ICANN's operations and behaviour, ESPECIALLY
those that are regarded as confidential (for every local government
body that is up to no good, marks the 'hairy' documents as
confidential.<br>
<br>
An independent inspector could, and indeed should, act on his or her
own motion. <br>
<br>
And should have the benefit of an overarching Charter to aid their
work, similar to the Canadian Charter, or the principles of the US
Constitution, to which ICANN should be held.<br>
<br>
An independent inspector should also be financially self-sufficient
so as not to worry, even unconsciously, about upsetting senior staff
in the pursuit of the truth.<br>
<br>
This could be done via ICANN donating capital money to an
'Accountability Trust' who, independent of ICANN, employ the
independent inspector, and would have restraints (both explicit, and
through the independent indnature of the trustees appointed) on how
they can exercise control on the office-holder.<br>
<br>
Having now written the above, I have convinced myself we need such
an office.<br>
<br>
<br>
<br>
Nigel<br>
<br>
PS: Just to avoid an further cross-cultural misunderstandings, due
to ambiguous terms-of-art used in the two cases I link to, above.<br>
<br>
1. (Mostly for US readers) a 'sheriff' is a member of Scotland's
judiciary (i.e. a lower tier, or County Court judge): NOT a
law-enforcement officer.<br>
<br>
2 (Most for readers in Great Britain), the 'Bailiff' referred to is
NOT a debt-collector legally allowed to seize goods: he is a member
of both the Island's judiciary (its highest judge) and its
legislature (he is Speaker of the House)<br>
<br>
<br>
<br>
<br>
<div class="moz-cite-prefix">On 20/07/15 06:02, David Cake wrote: <br>
</div>
<blockquote
cite="mid:05D9CD29-6D0D-4847-AF9A-237BCCA05309@difference.com.au"
type="cite">
<pre wrap="">
</pre>
<blockquote type="cite">
<pre wrap="">On 18 Jul 2015, at 2:38 am, Kieren McCarthy <a class="moz-txt-link-rfc2396E" href="mailto:kieren@kierenmccarthy.com"><kieren@kierenmccarthy.com></a> wrote:
</pre>
<blockquote type="cite">
<pre wrap="">some personnel issues should remain confidential,
</pre>
</blockquote>
<pre wrap="">
I don't understand why people keep putting this strawman out there. No one is suggesting, or indeed has ever suggested, that personnel issues be included in a proper accountability mechanism.
</pre>
<blockquote type="cite">
<pre wrap="">Why would a strengthened ombudsman not be a good fit for this role?
</pre>
</blockquote>
<pre wrap="">
I'll give you three good reasons:
1. The Ombudsman was created in 2004. Despite numerous efforts to make the role effective, it has never happened. Why keep making the same mistake?
</pre>
</blockquote>
<pre wrap="">
Frankly, the same could be said of most ICANN accountability measures. It is the hope of this entire CCWG process that with sufficient leverage, we have a historic opportunity to make some of them far more effective than they were in the past.
</pre>
<blockquote type="cite">
<pre wrap="">
2. The Ombudsman is completely reliant on ICANN corporate. For access to people and documents, for resources, for salary, for technical support, for logistical support, for an office, for a room at ICANN meetings, for everything except his own body. And his role and what he can do is determined by ICANN's legal department in the rules that they wrote. The Ombudsman also signs a very strong confidentiality agreement with ICANN that effectively ties their hands on everything except illegal activity. See point 1.
3. An Ombudsman is a single person. And one completely reliant on ICANN. This provides an enormous degree of control by ICANN and very little freedom for the accountability role the Ombusdsman is supposed to fulfill. There are numerous people able to testify that ICANN corporate has no hesitation in applying significant pressure on individuals if they act in a way that it deemed a potential threat. All of those people are however under confidentiality agreements with ICANN.
</pre>
</blockquote>
<pre wrap="">
I said ‘strengthened’. I would assume both of these issues can be significantly mitigated by changes to the role - particularly, rewriting of the agreement with the ombudsman if it weakens the office, and some process for increasing resources of the office when/if required. But the extent to which such changes might be effective can be discussed in the WS2 work on the ombudsmans role.
I do think that there are issues where there is a need for someone who has the authority to see documents that may have legitimate grounds to be considered confidential (personnel records, security issues, etc) and make judgements as to what information should be released, and that person needs to be very familiar with ICANN in order to perform the role effectively. There absolutely are some legitimate reasons for information to remain confidential, and I think an external enquiry model is likely to make that problem worse (in the sense of leading to escalating legal obstruction from ICANN legal to every request) not better.
An ongoing Independent Inspector General role or similar would seem to be an interesting alternative - but my original point was that such a role would have large overlap with the Ombudsmans existing role, and it might be far more practical to fix an existing role rather than add a new one.
David
</pre>
<br>
<fieldset class="mimeAttachmentHeader"></fieldset>
<br>
<pre wrap="">_______________________________________________
Accountability-Cross-Community mailing list
<a class="moz-txt-link-abbreviated" href="mailto:Accountability-Cross-Community@icann.org">Accountability-Cross-Community@icann.org</a>
<a class="moz-txt-link-freetext" href="https://mm.icann.org/mailman/listinfo/accountability-cross-community">https://mm.icann.org/mailman/listinfo/accountability-cross-community</a>
</pre>
</blockquote>
<br>
</body>
</html>