Re: [At-Large] [NA-Discuss] Personal Names in the DNS
Danny: The Protection of the Rights of Others Working Group should not only address issues raised by the IP constituency, but also "user" related issues - such as the registration of individual names. Definitely would support that at-large take this up. Would be good to have a comment drafted in response to the report on or by the San Juan meeting. Could you help draft a first version? regards, Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377 On 6-Jun-07, at 9:35 AM, Danny Younger wrote:
Finally... a DNS-related discussion has emerged on web405:
The issue concerns the registration of individual names. An example was cited of a teacher whose personal name was registered by another person with the intent to make her look bad. The initial proposal was that the proper name of a human being should be restricted in the DNS only to those people with that particular name.
Further discussions noted that the UDRP is not the proper vehicle for a resolution of this type of dispute (...and we all know that revisions to the UDRP have been warranted for some time).
This is a topic that the "Protection of the Rights of Others Working Group" didn't touch (as their sole focus appears to be on enhancing protections for commercial Intellectual Property interests).
In my view, this issue bears examination. If others agree, an Issues Report should be requested.
______________________________________________________________________ ______________ Shape Yahoo! in your own image. Join our Network Research Panel today! http://surveylink.yahoo.com/gmrs/yahoo_panel_invite.asp?a=7
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge- lists.icann.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
Robert, I'm currently involved in a project related to the Registrar Accreditation Agreement (which will be consuming all my available time until the project is complete). Perhaps Brett or Dennis from web405 can take the lead on this one... Best regards, Danny --- Robert Guerra <lists@privaterra.info> wrote:
Danny:
The Protection of the Rights of Others Working Group should not only address issues raised by the IP constituency, but also "user" related issues - such as the registration of individual names.
Definitely would support that at-large take this up. Would be good to have a comment drafted in response to the report on or by the San Juan meeting. Could you help draft a first version?
regards,
Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377
On 6-Jun-07, at 9:35 AM, Danny Younger wrote:
Finally... a DNS-related discussion has emerged on web405:
The issue concerns the registration of individual names. An example was cited of a teacher whose personal name was registered by another person with the intent to make her look bad. The initial proposal was that the proper name of a human being should be restricted in the DNS only to those people with that particular name.
Further discussions noted that the UDRP is not the proper vehicle for a resolution of this type of dispute (...and we all know that revisions to the UDRP have been warranted for some time).
This is a topic that the "Protection of the Rights of Others Working Group" didn't touch (as their sole focus appears to be on enhancing protections for commercial Intellectual Property interests).
In my view, this issue bears examination. If others agree, an Issues Report should be requested.
______________________________________________________________________
______________ Shape Yahoo! in your own image. Join our Network Research Panel today!
http://surveylink.yahoo.com/gmrs/yahoo_panel_invite.asp?a=7
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org
http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-
lists.icann.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
____________________________________________________________________________________ Shape Yahoo! in your own image. Join our Network Research Panel today! http://surveylink.yahoo.com/gmrs/yahoo_panel_invite.asp?a=7
June 5, 2007 Why does it take longer to consider conflict resolution than it would have to re-apply for status? Filed under: Uncategorized, cases and findings Frank Fowlie @ 1:03 pm I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework. The Ombudsman Framework states: Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation. I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply. ALAC Reply page 1, Item 4. The Ombudsmans interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsmans office provide a Dummies guide to the Ombudsman that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of Ombudsman does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it. Ombudsmans comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the Ombudsman for Dummies information that you reference. You may wish to modify or remove that bullet in light of this information. ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsmans office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply. Ombudsmans comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information. ALAC Reply page 2, Item 8. We are unclear as to the quick fix mentioned in the report. Ombudsmans comment: The quick fix was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached. ALAC Reply page 2, item 9. The Ombudsmans office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsmans office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language. Ombudsmans comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to cold call a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC. On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding. I would note that in the interim that what appear to be four other meta organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected. ___________________________________________________________________________________ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
In light of the comments mentioned below, it might be worthwhile to schedule time with the Ombudsman at the upcoming San Juan meeting. regards, Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377 On 6-Jun-07, at 2:52 PM, Danny Younger wrote:
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings — Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman’s interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman’s office provide a “Dummies guide to the Ombudsman” that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of “Ombudsman” does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman’s comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the “Ombudsman for Dummies” information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman’s office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman’s comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the “quick fix” mentioned in the report.
Ombudsman’s comment: The “quick fix” was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman’s office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman’s office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman’s comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to “cold call” a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other “meta” organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________________ _____________ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge- lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
I would recommend that this meeting be held with the presence of General Counsel. Regards, Roberto
-----Original Message----- From: alac-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] On Behalf Of Robert Guerra Sent: 06 June 2007 21:17 To: At-Large Worldwide Subject: Re: [At-Large] omblog.icann.org
In light of the comments mentioned below, it might be worthwhile to schedule time with the Ombudsman at the upcoming San Juan meeting.
regards,
Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377
On 6-Jun-07, at 2:52 PM, Danny Younger wrote:
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings - Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman's interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman's office provide a "Dummies guide to the Ombudsman" that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of "Ombudsman" does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman's comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the "Ombudsman for Dummies" information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman's office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman's comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the "quick fix" mentioned in the report.
Ombudsman's comment: The "quick fix" was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman's office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman's office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman's comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to "cold call" a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other "meta" organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________________
_____________ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge- lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-l ists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
Good idea. -----Original Message----- From: Roberto Gaetano [mailto:roberto@icann.org] Sent: Wednesday, June 06, 2007 5:28 PM To: 'Robert Guerra'; 'At-Large Worldwide' Subject: Re: [At-Large] omblog.icann.org I would recommend that this meeting be held with the presence of General Counsel. Regards, Roberto
-----Original Message----- From: alac-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] On Behalf Of Robert Guerra Sent: 06 June 2007 21:17 To: At-Large Worldwide Subject: Re: [At-Large] omblog.icann.org
In light of the comments mentioned below, it might be worthwhile to schedule time with the Ombudsman at the upcoming San Juan meeting.
regards,
Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377
On 6-Jun-07, at 2:52 PM, Danny Younger wrote:
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings - Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman's interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman's office provide a "Dummies guide to the Ombudsman" that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of "Ombudsman" does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman's comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the "Ombudsman for Dummies" information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman's office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman's comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the "quick fix" mentioned in the report.
Ombudsman's comment: The "quick fix" was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman's office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman's office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman's comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to "cold call" a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other "meta" organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________________
_____________ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge- lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-l ists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-lists.icann.org At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
Dear All It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document. The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board. Sincerely Jacqueline A. Morris ALAC Chair -----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Wednesday, June 06, 2007 2:53 PM To: NA Discuss Cc: At-Large Worldwide Subject: [NA-Discuss] omblog.icann.org June 5, 2007 Why does it take longer to consider conflict resolution than it would have to re-apply for status? Filed under: Uncategorized, cases and findings — Frank Fowlie @ 1:03 pm I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework. The Ombudsman Framework states: Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation. I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply. ALAC Reply page 1, Item 4. The Ombudsman’s interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman’s office provide a “Dummies guide to the Ombudsman” that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of “Ombudsman” does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it. Ombudsman’s comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the “Ombudsman for Dummies” information that you reference. You may wish to modify or remove that bullet in light of this information. ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman’s office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply. Ombudsman’s comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information. ALAC Reply page 2, Item 8. We are unclear as to the “quick fix” mentioned in the report. Ombudsman’s comment: The “quick fix” was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached. ALAC Reply page 2, item 9. The Ombudsman’s office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman’s office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language. Ombudsman’s comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to “cold call” a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC. On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding. I would note that in the interim that what appear to be four other “meta” organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected. ____________________________________________________________________________ _______ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html _______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge-lists.ica nn.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
That was exactly the agreement between Board officials and Frank, that he chose to break. Hence my suggestion to have any further exchange with the Ombudsman only at the presence of General Counsel. Cheers, Roberto
-----Original Message----- From: alac-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] On Behalf Of Jacqueline A. Morris Sent: 06 June 2007 22:45 To: 'Danny Younger'; 'NA Discuss' Cc: 'At-Large Worldwide' Subject: Re: [At-Large] [NA-Discuss] omblog.icann.org
Dear All It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document. The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board. Sincerely Jacqueline A. Morris ALAC Chair
-----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Wednesday, June 06, 2007 2:53 PM To: NA Discuss Cc: At-Large Worldwide Subject: [NA-Discuss] omblog.icann.org
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings - Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman's interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman's office provide a "Dummies guide to the Ombudsman" that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of "Ombudsman" does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman's comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the "Ombudsman for Dummies" information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman's office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman's comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the "quick fix" mentioned in the report.
Ombudsman's comment: The "quick fix" was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman's office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman's office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman's comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to "cold call" a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other "meta" organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________ ______________ _______ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atl arge-lists.ica nn.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-l ists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
Jacqueline: It seems due process was not followed by the Ombudsman's office. how interesting.. I'd recommend that a complaint notice be sent to the board indicating that the Ombudsman's office has published a public comment referring to a document marked confidential. A note much like the one you posted below would suffice. The Ombudsman's office should be cc'd as well. regards, Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377 On 6-Jun-07, at 4:44 PM, Jacqueline A. Morris wrote:
Dear All It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document. The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board. Sincerely Jacqueline A. Morris ALAC Chair
-----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Wednesday, June 06, 2007 2:53 PM To: NA Discuss Cc: At-Large Worldwide Subject: [NA-Discuss] omblog.icann.org
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings — Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman’s interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman’s office provide a “Dummies guide to the Ombudsman” that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of “Ombudsman” does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman’s comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the “Ombudsman for Dummies” information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman’s office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman’s comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the “quick fix” mentioned in the report.
Ombudsman’s comment: The “quick fix” was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman’s office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman’s office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman’s comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to “cold call” a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other “meta” organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________________ ______ _______ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge- lists.ica nn.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge- lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
Be aware that, given the circumstances, all what you cc: to the Ombudsman, even if marked private, cannot be excluded to appear in the Ombudsman blog. On the other hand, ALAC does not have (or at least does not want to take) the same liberty in using other material deemed to be provided in confidentiality, therefore I would advise to let the communication to the Ombudsman be done via the General Counsel, who will mark every piece of information he finds appropriate as "privileged and confidential" creating liability for who publishes it without permission. Jacqueline's note should be forwarded to the Board, plus General Counsel, by the ALAC Liaison to the Board, possibly not directly by Jacqueline. A little bit of formalism in these cases might help avoiding problems in the future. ;>) Cheers, Roberto
-----Original Message----- From: alac-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] On Behalf Of Robert Guerra Sent: 06 June 2007 23:56 To: At-Large Worldwide Subject: Re: [At-Large] omblog.icann.org
Jacqueline:
It seems due process was not followed by the Ombudsman's office. how interesting..
I'd recommend that a complaint notice be sent to the board indicating that the Ombudsman's office has published a public comment referring to a document marked confidential. A note much like the one you posted below would suffice.
The Ombudsman's office should be cc'd as well.
regards,
Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377
On 6-Jun-07, at 4:44 PM, Jacqueline A. Morris wrote:
Dear All It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document. The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board. Sincerely Jacqueline A. Morris ALAC Chair
-----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Wednesday, June 06, 2007 2:53 PM To: NA Discuss Cc: At-Large Worldwide Subject: [NA-Discuss] omblog.icann.org
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings - Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman's interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman's office provide a "Dummies guide to the Ombudsman" that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of "Ombudsman" does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman's comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the "Ombudsman for Dummies" information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman's office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman's comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the "quick fix" mentioned in the report.
Ombudsman's comment: The "quick fix" was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman's office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman's office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman's comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to "cold call" a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other "meta" organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________________
______ _______ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge- lists.ica nn.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge- lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-l ists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
I agree with Roberto - I don't care who breaches the agreement - we will not fall to the same low standard. If a document is confidential, we won't be the ones to breach that, no matter who else does. This is why I haven't discussed the issue in public - it's before the Board, and the material is confidential. It can't really be discussed properly without breaching the rule of confidentiality that is applied by the ombudsman himself, and we certainly won't do that. I do agree that given past experience it is probably a good idea to have the General Counsel manage the documents and communications that are to be confidential. I did make some factual comments on the ombudsman's blog post, copied below for your information. “This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.” No - this left the Board with 3 working days to consider the ALAC’s OBJECTIONS to your report. The Board had YOUR report for the full 60 days, and had lots of time to consider YOUR report. Had the Board been ready to consider the report, they would have made their determination based on documents submitted to that date. “ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration.” Now - if the ALAC submitted objections to the Board with 3 working days to go to the 60 days deadline, where does the 85 day number come from? Was the Objection document submitted to the Board in 60-3 working days or 85 days? Which is it? If any applicant feels that they have been unfairly treated, they can apply to several mechanisms for relief. Of over 100 applicants to date, very very few have. “the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; ” The process requires time for the ombudsman’s office to investigate, to create the report, submit the report, have ALAC respond, make NO changes, submit to the Board, then the Board has 60 days. Seems to me that this process by design takes longer than the 90 days in which the ALAC processes ALS applications. Not ALAC’s fault… almost none of the action in the Ombudsman’s Framework process lies with the ALAC. Jacqueline -----Original Message----- From: Roberto Gaetano [mailto:roberto@icann.org] Sent: Wednesday, June 06, 2007 6:17 PM To: 'Robert Guerra'; 'At-Large Worldwide' Subject: Re: [At-Large] omblog.icann.org Be aware that, given the circumstances, all what you cc: to the Ombudsman, even if marked private, cannot be excluded to appear in the Ombudsman blog. On the other hand, ALAC does not have (or at least does not want to take) the same liberty in using other material deemed to be provided in confidentiality, therefore I would advise to let the communication to the Ombudsman be done via the General Counsel, who will mark every piece of information he finds appropriate as "privileged and confidential" creating liability for who publishes it without permission. Jacqueline's note should be forwarded to the Board, plus General Counsel, by the ALAC Liaison to the Board, possibly not directly by Jacqueline. A little bit of formalism in these cases might help avoiding problems in the future. ;>) Cheers, Roberto
-----Original Message----- From: alac-bounces@atlarge-lists.icann.org [mailto:alac-bounces@atlarge-lists.icann.org] On Behalf Of Robert Guerra Sent: 06 June 2007 23:56 To: At-Large Worldwide Subject: Re: [At-Large] omblog.icann.org
Jacqueline:
It seems due process was not followed by the Ombudsman's office. how interesting..
I'd recommend that a complaint notice be sent to the board indicating that the Ombudsman's office has published a public comment referring to a document marked confidential. A note much like the one you posted below would suffice.
The Ombudsman's office should be cc'd as well.
regards,
Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377
On 6-Jun-07, at 4:44 PM, Jacqueline A. Morris wrote:
Dear All It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document. The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board. Sincerely Jacqueline A. Morris ALAC Chair
-----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Wednesday, June 06, 2007 2:53 PM To: NA Discuss Cc: At-Large Worldwide Subject: [NA-Discuss] omblog.icann.org
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings - Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman's interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman's office provide a "Dummies guide to the Ombudsman" that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of "Ombudsman" does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman's comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the "Ombudsman for Dummies" information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman's office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman's comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the "quick fix" mentioned in the report.
Ombudsman's comment: The "quick fix" was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman's office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman's office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman's comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to "cold call" a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other "meta" organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________________
______ _______ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge- lists.ica nn.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge- lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-l ists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-lists.icann.org At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
We've never gotten an answer to the question: to whom do we complain about Ombudsman misconduct? Who ombuds the ombudsman? --Wendy Robert Guerra wrote:
Jacqueline:
It seems due process was not followed by the Ombudsman's office. how interesting..
I'd recommend that a complaint notice be sent to the board indicating that the Ombudsman's office has published a public comment referring to a document marked confidential. A note much like the one you posted below would suffice.
The Ombudsman's office should be cc'd as well.
regards,
Robert --- Robert Guerra <rguerra@privaterra.ca> Managing Director, Privaterra Tel +1 416 893 0377
On 6-Jun-07, at 4:44 PM, Jacqueline A. Morris wrote:
Dear All It is distressing that the Ombudsman has determined that he should publicly post selected contents of a confidential document sent by the ALAC to the Board during the determination of the reconsideration request, and forwarded to him as a courtesy, without consulting the principals in this communication with regard to the disclosure of the confidential document. The process is before the Board and the ALAC awaits their recommendation. As such, I believe that it is not proper to engage the issue in public fora until a decision is made by the Board. Sincerely Jacqueline A. Morris ALAC Chair
-----Original Message----- From: Danny Younger [mailto:dannyyounger@yahoo.com] Sent: Wednesday, June 06, 2007 2:53 PM To: NA Discuss Cc: At-Large Worldwide Subject: [NA-Discuss] omblog.icann.org
June 5, 2007
Why does it take longer to consider conflict resolution than it would have to re-apply for status?
Filed under: Uncategorized, cases and findings — Frank Fowlie @ 1:03 pm
I remain concerned that the handling of the file 06-317 remains inadequate. ALAC was in possession of my report for 85 days before making a reply to the Board for their consideration. This left the Board with 3 working days to deliberate and comment on my recommendations, consistent with the Ombudsman Framework.
The Ombudsman Framework states:
Where a recommendation has been made to the Board of Directors, the Board of Directors shall respond to the Ombudsman within 60 days following their next Board meeting following a recommendation.
I have raised a number of concerns with the ALAC reply, as it would appear that a number of the responses, or criticisms of my report, are factually inaccurate. I have urged the ALAC to reconsider these, and to retract their report to correct these errors, but to date, they have declined to do so. In order to make sure that the Board has the best information before them, I am taking the liberty of responding to points that ALAC has made in its reply, which, at your discretion, you may or may not use to update that reply.
ALAC Reply page 1, Item 4. The Ombudsman’s interaction with the Committee was marked by misunderstanding on both sides with regard to the roles and responsibilities of the respective offices, leading to some acrimonious exchanges. This is regrettable, and we suggest that the Ombudsman’s office provide a “Dummies guide to the Ombudsman” that explains the role, powers and processes. It is clear from the long interaction with the ALAC that the position of “Ombudsman” does not have meaning in certain other cultures, and ICANN and the Ombudsman should take a proactive role in explaining this concept to those who may not understand it.
Ombudsman’s comment: I would point out that I have provided a number of orientations to ALAC, and I volunteer to attend each and every ALAC meeting conducted at the ICANN Meetings. I note that the Ombudsman Webpages provides basic information about the Office, and Annual Reports in English, German, Spanish, Chinese, French and Arabic. For the last several ICANN meetings a six language multi-lingual brochure on the Office of the Ombudsman is available with all other ICANN print information. I believe that this would constitute the “Ombudsman for Dummies” information that you reference. You may wish to modify or remove that bullet in light of this information.
ALAC Reply page 1, item 5. We wish to discuss charge of negligence against the ALAC with respect to the process for referral to the Ombudsman’s office. If giving the email contact for the Ombudsman was not sufficient, and if a standard set of information is to be sent to applicants who wish review, this information should have been provided to the ALAC when the position of Ombudsman was introduced to the ICANN community. It is clear from the extract of the email correspondence quoted that this process was not adequately explained to the ALAC. While ignorance is not a defense, it can be used to show lack of malice in the failure to comply.
Ombudsman’s comment: The issue with respect to the negligence in this matter is not related to the provision of the Ombudsman email address to the complainant, but that to the fact that once the complainant wrote to the ALAC demanding an Ombudsman review, that nothing was done to facilitate the initiation of a complaint by the Office of the Ombudsman, nor to further inform the complainant to of how to access Ombudsman services. Rather, the applicant asked ALAC for an Ombudsman review on October 5, 2006, and on November 22, 2006, ALAC then provided an email address for my Office. In this 6 week gap, ALAC did not inform my Office of the requested review, nor did it advise the complainant of any method to contact my Office. Neither did ALAC simply contact my Office to ask what to do. I note that my Office has provided orientation to the three ALAC staff members over time, and has oriented ALAC on a number of instances. The Office of the Ombudsman does not allege any malicious intent or action on behalf of the ALAC. Negligent is a technical term meaning that something was not done which should have been done. It does not infer malice. Again, you may wish to modify or remove that bullet in light of this information.
ALAC Reply page 2, Item 8. We are unclear as to the “quick fix” mentioned in the report.
Ombudsman’s comment: The “quick fix” was the suggestion circulated at or around November 22, that the ALAC could reconsider their vote. PDF of this email chain attached.
ALAC Reply page 2, item 9. The Ombudsman’s office needs to apply its own respect for diversity in setting deadlines with respect to requests for action and information. The ALAC and its constituency consists of volunteers from many countries and many cultures. This means that in some parts of the world, business shuts down for holidays that do not correspond to North American ones. It is incumbent on the Ombudsman’s office to consider these cultural differences in setting deadlines. Just as one would not expect a US business to respond over the Thanksgiving holiday, one cannot expect a German to respond over the long Christmas holidays, the Easter holidays etc, nor a Brasilian to respond over Carnival. The ALAC does take these into consideration, and sometimes this makes our response time longer, but it is important. Also, the Ombudsman must consider that English is not the first language for the majority of the ALAC and its constituency. In this case, misunderstandings may occur, and additional care must be taken to avoid jumping to a wrong conclusion based on a simple difficulty of language.
Ombudsman’s comment: Whilst I understand and empathize with your argument; I must respectfully point out that there is a substantial difference between trying to “cold call” a person to have a conversation during a holiday period, and actually having a conversation at a time and date pre-arranged by participants. Factually, the latter was the case in attempting to speak with your predecessor. I attach a half dozen emails between us from the relevant time period which show those efforts. I point out again the efforts of this Office to diminish linguistic challenges; from multi-lingual documents, to the reception of complaints in any language, with translation conducted through my Office. I would note that the latter was as a suggestion of the ALAC. Finally, I would also remind you that with respect to this file, that I have previously offered to receive communication from any ALAC member in any language, and then conduct translations. Again, you may wish to modify or remove that bullet in light of this information. In general, while it is not my intent to look at the substantive matter of the ALAC deliberations, I remain concerned that there may be a lack of predictability with the ALS certification process. In the application of an administrative process it should be predictable that persons or entities applying for a benefit or privilege should expect to receive the same response, with all things being equal in the application. In the case of ******, the application was rejected as ******* was considered to be an organization of organizations; rather than an organization of individuals. I note that, in the interim, applications 81, 87, 91, and 95, which all appear to meta organizations, have been approved by the ALAC.
On an administrative process view, the delays in considering my recommendations have now far exceed the 90 day time frame that ALAC promises to process ALS applications in. Therefore, it would have been less time consuming for the applicant to have reapplied for ALS status anew, than the time that it has taken to create an administrative response to my recommendations; which remains outstanding.
I would note that in the interim that what appear to be four other “meta” organizations (organizations made up of organizations) have been approved by ALAC, and that this was the primary reason that the applicant in 06-317 was rejected.
______________________________________________________________________ ______ _______ You snooze, you lose. Get messages ASAP with AutoCheck in the all-new Yahoo! Mail Beta. http://advision.webevents.yahoo.com/mailbeta/newmail_html.html
_______________________________________________ NA-Discuss mailing list NA-Discuss@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/na-discuss_atlarge- lists.ica nn.org --- Draft MoU with ICANN: http://www.icannwiki.org/NA_RALO_MOU
Draft Operating Principles: http://www.icannwiki.org/NA_RALO_OP
Draft Code of Conduct: http://www.icannwiki.org/NARALO_Code_of_Conduct
No virus found in this incoming message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.472 / Virus Database: 269.8.9/834 - Release Date: 6/5/2007 2:38 PM
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge- lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
_______________________________________________ ALAC mailing list ALAC@atlarge-lists.icann.org http://atlarge-lists.icann.org/mailman/listinfo/alac_atlarge-lists.icann.org
At-Large Official Site: http://www.alac.icann.org ALAC Independent: http://www.icannalac.org
-- Wendy Seltzer -- wendy@seltzer.org phone: +1.617.418.3456 / +44 (0)1865 287203 // cell: 07785 550361 Visiting Fellow, Oxford Internet Institute Fellow, Berkman Center for Internet & Society http://cyber.law.harvard.edu/seltzer.html http://www.chillingeffects.org/
While I was on the ALAC, I was astonished at the Ombudsman's behavior. He was consistently antagonistic, routinely misrepresented the discussions, disclosed confidential material, misquoted or quoted out of context to create misleading impressions, and otherwise behaved in utterly disgraceful ways. In view of his past behavior I would strongly encourage the ALS and RALOs to stay as far away from him as possible, and I would reject out of hand any request or demands he makes. R's, John
participants (6)
-
Danny Younger -
Jacqueline A. Morris -
John L -
Robert Guerra -
Roberto Gaetano -
Wendy Seltzer