The accountability structure of ICANN has an accountability issue.
Dear ICANN Board of Directors,The accountability structure of ICANN has an accountability issue. I am
extremely concerned that too much power and control is placed in the hands of one individual in the form of the Ombudsman office. The role which is supposed to hold ICANN accountable and speak for the "little man" is itself unaccountable. The ombudsman office should not receive any additional authority, expansion or funding without a comprehensive and truly external review of its function and staff. The reasons are explained below. In addition to the serious case detailed, the following questions should be pondered: - To whom does someone complain if the Ombudsman office fails to investigate facts? - To whom does someone complain if the Ombudsman office publishes false information about members of the community? - To whom does someone complain if the Ombudsman office is used to provide cover for ICANN's mistakes? - To whom does someone complain if the Ombudsman office abuses its power? The global body which is supposed to represent all Internet uses in a multi-stakeholder model is reduced to an undemocratic function when disputes arise concerning ICANN's core functions. There must be a better method, or at least one with more accountability. The current execution of the office of the Ombudsman does not function as presented to the community in that it is not responsive to the community and does not perform its existing professed duties. The ICANN Ombudsman is defined by their own statements as an independent, impartial, and neutral reviewer of facts and investigator of complaints about unfairness. However, in response to complaints by dozens of Internet users on very serious matters the office of the Ombudsman, instead of conducting an impartial investigation of facts issued an uncited "report" dismissing the complaints. The Ombudsman report is located here:https://omblog.icann.org/?p=1023 and does not present a fair or factual review of the initial complaint. The Ombudsman actually refused to consider information brought to the office by people who had firsthand knowledge of the cases presented. Instead of addressing why ICANN failed to respond to over 5000 complaints, the Ombudsman report focuses analysis on the complainant. This is basically an ad hominem attack. A proper response would be based on refutation and counterargument, not omission or clams without citation. Overall the Ombudsman process appears arbitrary, capricious and irresponsible. The details of the issued are appended below. The Board should be aware that the Ombudsman specifically requested that particular individuals contact him, but then excluded their testimony from the record. The Ombudsman conclusion that: "I consider that there is no substance to the complaints" only reflects the way in which the Ombudsman has described the complaint. The Ombudsman report contains omissions, factual errors, claims without citation, and material not included within the original complaint. The omissions, inaccuracies and irrelevant references in the report (https://omblog.icann.org/?p=1023) are enumerated below: 1. No Response to Specific Issues The Ombudsman report does not directly address the specific issues in the complaints (and there are over 8000 examples which have been dismissed as being "the same"). For example in the issue of WDPRS complaint #c6e6d0835bdb4112636fceb7d8c5c1a27744cabe neither the Ombudsman report nor ICANN have provided any explanation or rationale for how it is possible that the "Registrar verified that the data was correct" when all presented evidence shows this simply technically impossible. There is no address or discussion of this bald fact in the Ombudsman report. As another larger example there is no mention or explanation for the 5,000 or more complaints filed with ICANN Compliance which received no response. This is not addressed in the report. 2. Reference to Extraneous Material The Ombudsman report leads with a reference to LinkedIn forum discussions (Page 1). LinkedIn Forum discussions are not the complaint. LinkedIn forums are a place for discussion within the community. This should not be the focus as they were not part of the material submitted directly to the Ombudsman. The highlighting of LinkedIn discussions serves as a distraction from the core material. This should be stricken from the response and replaced with actual complaints submitted to the Ombudsman. 3. Citation of Current and Future Changes The complaints submitted to the Ombudsman concern specific cases where ICANN Staff failed to properly process or investigate WDPRS reports. The Ombudsman report does not address any of the specifics of these cases and instead includes long recitations of modified ICANN policy and promises of future changes. This is not an investigation but rather reads as an advertisement without any practical application of the cited polices. 4. Irrelevant Rhetorical Question On page 3 of the Ombudsman report, the following comment is found: "I am unsure whether the complainants have read the relevant pages on the Compliance pages of the ICANN site." This investigation should be factual; this comment appears as internal musing about the detail level of research conducted by the complainants. Other than this statement being purely internal dialogue, there are two main problems with the statement. One is that the Ombudsman has not determined if the complainants read the Compliance - therefore it is not a fact. The second problem concerns relevance of the topic. As discussed previously, changes to ICANN's procedures now or in the future have no relevance in determining whether ICANN staff performed duties as claimed in the cited cases. 5. Out-of Context Comments on Aging The Ombudsman report regularly claims that the complaint issues are "old" without citing reason for the aging. This has been a long process, mostly due to ICANN's response to it. The Ombudsman has been made aware of the following, but these facts do not appear in the report: . The community collaborated for over 10 months on the details of many of these tickets, going through long periods of back-and-forth with ICANN staff. At the end Compliance simply refused to discuss the issues further, leaving details and resolution in the lurch. . Following this disappointment, an attempt was made through the ALAC to discuss the problem with ICANN's CEO. The result of this was a teleconference in which ICANN's CEO requested that Bruen submit the report directly to the CEO and his office would respond publicly. ICANN took 8 months to post this report in the CEO's correspondence and then did not respond to the report publicly as promised (see http://archive.icann.org/en/news/correspondence/bruen-to-chehade-22apr13-en. pdf). . It was only after these efforts to work within the system failed did we file a complaint with the Ombudsman. The Ombudsman in fact received detailed information about the issues in April 2013 and then again in July 2013. It is not accurate to say the Ombudsman complaint was filed after the "60 day" deadline since this was an ongoing problem and all possible options were exhausted before filing with the Ombudsman. The Ombudsman report fails to mention that the complaint was preceded by extensive attempts to work within the boundaries established. 6. Omission of contract language Page 6 contains the following critique of the complaint: "The complainant has asserted that the registrant must provide verifiable information. In fact the agreement provides for reliable information, which is substantially different. This is not the same as verifiable." The contractual test is actually "accurate" and something is only accurate if it can be verified. The RAA reads "accurate and reliable contact details." The Ombudsman report only cites half of the test in its critique. Additionally, ICANN staff regularly uses the term "verify" in its own tests of registrar compliance. As an example please refer to the language used the matter of WDPRS # 6fa41d93452f769d933df57864000047fbadbfcb (which is part of the complaint): "Registrar verified data was correct on 16 June 2011. W-Ticket closed pursuant to compliance process, as registrar suspended domain name after previously verifying that the data was correct. Ticket Closed(see http://archive.icann.org/en/news/correspondence/bruen-to-chehade-22apr13-en. pdf)." Therefore, ICANN's own test includes verification and requirement of the registrar to verify. The inclusion of this language in the complaint only reflects the ICANN use of the term. 7. Inaccurate Statement about Motivations Page 5 contains the statement: "Garth Bruen goes to some pains to explain the commercial services which his company provides which are designed to cope with spam, phishing and other dubious sites." The use of "commercial" in this context is completely unfounded and not factual. All of our members and everyone who participated in this process are represented free of charge. This work is done on behalf of the community on a voluntary basis. There are no citations of the "pains to explain the commercial service" anywhere in this response. In terms of this statement I am formally requesting you remove this reference from the document. 8. Invalidated Claim The Ombudsman report contains the following paragraph: "The complainant's issue is that Compliance is not doing its job. This requires however a leap in their argument from the role of Compliance within ICANN, through to the ability to deal with the spam and phishing issue, which is mentioned by many of the complainants. This regrettably is a fundamental misunderstanding of the role of Compliance within ICANN." This regrettably is a fundamental misrepresentation of the complaint which does not make any claims as cited in the Ombudsman report. The complaint maintains the issue is about ICANN procedure and policy. Supplemental correspondence with the Ombudsman on this issue further clarifies the issue in part stating: "The abuse Internet users experience is a byproduct of unchecked violations, which are the subject of our complaint. In the cases submitted to you spam was the trigger of analysis, not the issue. The issue is that the registrant, registrar and ICANN failed in their obligations.(Bruen email)" 9. Unsubstantiated Claim The Ombudsman report contains this statement: "During my discussions with the registrars I was told that complaints had been made about domains which they administered, but which had no validity at all. I have seen such a complaint provided by one of the registrars by Knujon, which makes it clear that the information is not only inaccurate but out of date." There are two problems with this statement: the first is that there is no verifiable proof of what is claimed; the second is that the Ombudsman report does not respond to the more than 8000 WDPRS tickets presented in the complaint. The Ombudsman report takes the time to cite a hearsay discussion but does not investigate the specific complaint details. 10. Curious Comments about Compliance Employees The Ombudsman report states on page 7 that: "There has also been a criticism that staff members were fired for raising issues of inadequate compliance action, but on my investigation I have found that the staff members who actually did the work are still at ICANN. I am confident from my investigation that this allegation is unsubstantiated." During this process the complainants from the community made specific requests of the Ombudsman to interview Khalil Rasheed, Pam Little, and Stacy Burnette - all of whom worked within Compliance during the time period of the complaint and worked directly on the issues cited in the complaint. It is clear from the Ombudsman report that these former employees were not interviewed as requested. To state that "the staff members who actually did the work are still at ICANN" is factually incorrect. As a result this investigation is incomplete. While the Ombudsman frequently states that personnel issues are outside of charter we find that Article V of Bylaws excludes employees from resolution of problems by the Ombudsman (Sec3:1) and grants no authority to the Ombudsman to act in administrative or personnel matters (Sec 3:2). Neither issue was part of the complaint. However, Article V states the Ombudsman function is to resolve problems concerning ICANN's staff failure to act (Sec 3:1). Further, no ICANN employee may prevent or impede the Ombudsman's contact with employees of ICANN (Sec 4:1). 11. Irrelevant Citation The Ombudsman report contains the following statement on page 5: "However I was also told by Compliance that Internet users often make Whois inaccuracy complaints about spam domains without any evidence." This issue is immaterial to the complaint at hand and is out of scope for the Ombudsman report. The vague reference to "Internet users" does not apply to our thoroughly documented complaint but rather refers to unknown parties not connected to the complaint. How exactly do poorly constructed complaints by others invalidate this complaint? 12. Undocumented Assessment of Registrar's Compliance The incident described below has since become the subject of a Washington Post investigation which determined the registrant data in the cited record is indeed invalid despite what the Ombudsman office published. Page 5 contains this statement about the registrar BizCn: "I also mention one registrar in particular which has been openly criticised, being Bizcn.com. As part of the monitoring by Compliance, scorecards of requests are kept. Compliance informed me that Bizcn.com is a registrar that is prompt & cooperative with Compliance inquiries, including Whois inaccuracy complaints. I was shown the scorecard, of all complaints since January 2013, which shows that all were resolved before a 3rd notice was needed." This statement flies in the face of reality and even contradicts Compliance statements about Bizcn, most notably in reference to WDPRS complaint #c6e6d0835bdb4112636fceb7d8c5c1a27744cabe Compliance has stated that: "Registrar did not respond to the following tickets (see http://archive.icann.org/en/news/correspondence/bruen-to-chehade-22apr13-en. pdf)" The situation cited at BizCn in our original report still exists today and was brought to the attention of even ICANN's CEO. The Ombudsman report contains no facts to support BizCn's compliance and does not address the specific issues concerning BizCn documented in the complaint. In conclusion, the Ombudsman report does not address the complaint, does not respond factually to the items in the complaint, and includes comments tending towards ad-hominem The idea that the Ombudsman report can only find fault with the complainant (without addressing any of the 8000 cases in the complaint) is incredulous to say the least. For these and all of the reasons cited above the Ombudsman report as issued should not be considered final. The Ombudsman report as written does not represent the interests of the public or consider the issues in the context of the Affirmation of Commitments. As a result, the perceived authority of the Ombudsman's office to mediate between the Internet community and ICANN either does not exist or is not implemented. Furthermore, it appears the use of the office itself has been abused. --- This email is free from viruses and malware because avast! Antivirus protection is active. http://www.avast.com