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Responses to A & T Review Team questionnaire
- To: <atrt-public-input@xxxxxxxxx>
- Subject: Responses to A & T Review Team questionnaire
- From: "Mary Wong" <MWong@xxxxxxxxxxxxx>
- Date: Wed, 14 Jul 2010 12:20:39 -0400
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<DIV>Although I am one of the elected Councillors for the Non-Commercial
Stakeholder Group (NCSG), the following comments are being submitted in my
personal capacity.</DIV>
<DIV> </DIV>
<DIV>Response to Question 1:</DIV>
<DIV>ICANN should be accountable to all stakeholders. Other commentators as
well as a joint public statement from ALAC and NCSG have highlighted the
inaccuracies and problems caused by the lack of access to Staff briefing
documents to the Board concerning SO and AC activities. It is critically
important for the community to be able to review and, if necessary, respond to,
inaccurate statements about it and/or its work. Within this multi-stakeholder,
bottom-up organization, the default position should be openness (disclosure),
with those exceptional legitimate instances where opaqueness (non-disclosure)
is utilized being disclosed in advance.</DIV>
<DIV> </DIV>
<DIV>Response to Question 2:</DIV>
<DIV>On the Ombudsman - the concept of an ombudsman is entirely legitimate and
can be useful. In the ICANN context, however, the NCSG experience has been that
how the Ombudsman operates has been arbitrary and unfair. The specific instance
I have in mind is the complaint that was filed by an individual community
member against the NCUC Chair, Robin Gross, alleging incivility on the part of
Ms. Gross towards this individual. My concern for purposes of this
Accountability & Transparency exercise is NOT the question of whether there
was incivility or not, or the actual Ombudsman's findings in the matter, but
rather: (1) the potential exceeding of his jurisdiction by the Ombudsman; and
(2) the way Ms. Gross was treated during the process.
<P>On (1), I question whether or not the Ombudsman's jurisdiction at the
time extended toward allegations of incivility, and also the possible remedy
under consideration of removing Ms. Gross from her elected office as
constituency chair. Although ICANN has adopted a code of civility, this does
not appear to be within the Ombudsman's mandate, nor does his jurisdiction
include anyone other than ICANN staff, Board members and actions of
"constituent bodies" (see <A title="(external link)"
href="http://www.icann.org/ombudsman/";
target=_blank>http://www.icann.org/ombudsman/</A>). </P>
<P>On (2), Ms. Gross was given only a very limited amount of time to file her
response to what became a fairly fact-intensive complaint. She did so, and
filed a lengthy legal response within the time given. Yet the Ombudsman managed
to render his decision - which should have included substantive legal review of
the legal doctrines cited by Ms. Gross in her response - in a remarkably short
period of time.</P>
<P>Further, during the process, the Ombudsman uploaded a blog post that, while
not identifying the parties by name (since the Ombudsman Framework requires
that any such post be generic in nature), gave sufficient details about the
incident such that anyone doing a simple Google search could identify the
case (this was, in fact, how Ms. Gross found out about the blog post - someone
who did exactly such a Google search emailed her to ask her about it). When
NCSG members posted comments on the Ombudsman's blog criticizing his judgment
in deciding to blog about an ongoing case, he immediately took down both the
original post and all the consequent comments, with no notice or
acknowledgment. This amounts not just to a breach of Ms. Gross' privacy, but
a lack of professionalism. </P>
<P>While I commend the Board on what I believe was ultimately the
correct decision in the circumstances, I
remain deeply concerned by the Ombudsman's conduct throughout
the process, which does not seem to be subject to any procedure for community
complaint or investigation. He reports only to the Board and the only remedy
seems to be removal by a 75% vote of the Board. </P>
<P>At the very least, the accountability mechanisms surrounding the Ombudsman's
exercise of his duties require investigation and improvement.</P>
<P>Response to Questions 3 and 4:</P>
<P>I believe the Board generally has a genuine commitment to transparency
in decision making, and that within the SOs transparency is usually not an
issue. Similarly, the Board seems to be sincere about acting in the
interests of global Internet users. For the NCSG, however, there has been
a lack of transparency in some of the Board's dealings with it during its
formative process, and its ability to engage global participants minimized.
Specifically, I refer to the process by which the NCSG interim charter was
determined, in two instances.</P>
<P>(1) The NCSG-in-formation had drafted a bottom-up interim charter that had
gained considerable support amongst its members as well as more broadly in
civil society (see point (2) below). At the Seoul meeting, the Board
agreed to meet with the NCSG to discuss the charter, and a lunch meeting was
organized during which a presentation on the charter, and a lively
Q&A, took place. Subsequently, however, on the morning of Constituency
Day, a new interim charter supposedly drafted by the Board's Structural
Improvements Committee (SIC) was emailed to the NCSG. No indication had
been given during the lunch meeting just days earlier of such a new charter,
and (given that its date showed it had been completed prior to Constituency
Day) the sudden provision of this new document just hours before the
NCSG's scheduled meeting with the SIC meant that no one in the NCSG had the
time or opportunity to even review it prior to that meeting. At minimum,
communication from the SIC - at the latest at the lunch meeting - indicating
that they intended not to proceed further with NCSG's interim charter as
drafted, but with a substantially different and new SIC-drafted charter, should
have been done. Instead, substantial time was lost and community mistrust
triggered by this.</P>
<P>(2) The NCSG's interim charter had seen numerous comments filed in
support of that charter during the public comment period, both by NCSG members
and non-member individuals and organizations. In the ICANN staff analysis of
the public comments, however, such support was tersely characterized as
appearing to be a "letter writing campaign" on the part of Robin Gross (the
NCUC Chair) and treated dismissively. All Ms. Gross and several members had
done was to write to civil society colleagues seeking support for the charter,
and many had responded by taking the time to file comments accordingly.</P>
<P>While ICANN staff workload can be heavy, and analyzing and summarizing
numerous public comments can mean the occasional use of careless
language, such treatment magnifies the perception that ICANN
staff have the power to distort and minimize the contributions of members
of the ICANN community, and intensifies mistrust and poor
relations between the staff (who for the most part are the faces, names
and persons most of the community most commonly and regularly interact with,
and who therefore represent ICANN) and the community. Please note that I
am not in this message accusing or singling out any particular ICANN staff
member, whose work and assistance I have personally benefitted from and
respect.</P>
<P>Thank you.</P>
<P>Respectfully submitted,</P>
<P>Mary Wong </P>
<P> </P></DIV>
<DIV><STRONG><FONT color=#800080>Mary W S Wong</FONT></STRONG></DIV>
<DIV>Professor of Law & Chair, Graduate IP Programs</DIV>
<DIV>Franklin Pierce Law Center</DIV>
<DIV>Two White Street</DIV>
<DIV>Concord, NH 03301</DIV>
<DIV>USA</DIV>
<DIV>Email: <A href="mailto:mwong@xxxxxxxxxxxxx";>mwong@xxxxxxxxxxxxx</A></DIV>
<DIV>Phone: 1-603-513-5143</DIV>
<DIV>Webpage: <A
href="http://www.piercelaw.edu/marywong/index.php";>http://www.piercelaw.edu/marywong/index.php</A></DIV>
<DIV>Selected writings available on the Social Science Research Network
(SSRN) at: <A
href="http://ssrn.com/author=437584";>http://ssrn.com/author=437584</A></DIV><BR>
<div>
<br><a href="http://www.piercelaw.edu/";><img
src="cid:MFHKELDJVDSP.affiliationlogo.jpg" alt="Pierce Law | University of New
Hampshire - An Innovative Partnership" border="0"></a> </div>
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