Questionable Comments By Ombudsman

["Garth At KnujOn" <garth@xxxxxxxxxx>]

This is in a part a direct response to the inappropriate comments by the
Ombudsman which are beneath the dignity of the office (see:
http://forum.icann.org/lists/comments-atrt2-recommendations-09jan14/msg00013
.html). But this incident is also a reminder of the inherent problems with
ICANN's accountability structure which is itself unaccountable. There are
two main problems with the ICANN Ombudsman office: one is a problem of
structure and the other is problem of execution. To put the structure
problem into perspective consider that there are, estimated in 2014, 2.4
Billion Internet users. Within ICANN there is one person who has the
authority to ignore and subvert complaints by the public; one person who,
through incompetence or omission, has the power to divert the will of the
Internet community. This is not accountability but irresponsibility by
design. In terms of execution, this Ombudsman office simply did not perform
its described duties and cannot account for this dereliction. 

According to ICANN's own description the Ombudsman "is a person who acts as
a trusted intermediary between an organization and some internal or external
constituency while representing not only but mostly the broad scope of
constituent interests."  The specific description of ICANN's Ombudsman is as
"(1) independent, impartial, and neutral; (2) A reviewer of facts; (3) An
investigator of complaints about unfairness." It is my contention (and that
of others who have been ignored by the Ombudsman office) that the Ombudsman
office (1) did not act in an independent, impartial or neutral way; (2) did
not review facts; and (3) did not conduct and investigation. For these
reasons the Ombudsman must be reviewed in a transparent manner. 

The Ombudsman office has abused its authority by engaging in ad hominem and
tu quoque instead of addressing factual complaints brought to its attention.
The Ombudsman has posted the following in the ATRT 2 mailing list: 

".there are a series of comments stemming from the report which I published
in relation to the complaint by Garth Bruen and others. They have not
accepted the finding in my report, and obviously hold quite different
opinions about the issues. Mr. Bruen is quite entitled to disagree with what
I say, but I do not intend to debate the report. It is worth noting for the
record that I have read the submissions which have been filed. They appear
to follow a template structure. They are entitled to do so. There is little
point in reopening this matter, because the system for submitting bulk
complaints has changed very substantially and Compliance has also changed in
the way it operates to be more vigorous and report in more detail.
Regrettably the submitters do not appear to have taken this into account."

There are multiple problems with this statement by the Ombudsman which need
to be reviewed and possibly investigated independently. 


1) The Ombudsman has stated "I do not intend to debate the report" but by
supplying commentary has actually entered the debate, however, not on a
factual basis. In truth, the Ombudsman cannot truly enter the debate since
doing so would require factual analysis of the issue, which so far the
Ombudsman has failed to provide.

2) The Ombudsman received at least 180 complaints from individual Internet
users concerning nearly ten thousand specific issues. The Ombudsman did not
directly respond to these complaints or properly investigate them. For the
Ombudsman to state "Mr. Bruen is quite entitled to disagree with what I say"
personalizes these policy issues to an irresponsible degree and improperly
dismisses the complaints of other Internet users. This is beneath the
dignity of the Ombudsman office and demonstrates a lack of independence,
impartiality, and neutrality.

3) The Ombudsman has stated that "It is worth noting for the record that I
have read the submissions which have been filed. They appear to follow a
template structure." The Ombudsman makes a veiled accusation in this comment
and fails to provide any evidence. Multiple Internet users supplied unique
comments about the apparent bias or failure in the Ombudsman office, yet the
Ombudsman has dismissed them without consideration only supports the claims
of bias and failure. Again, since the Ombudsman finds fault with the
complainants and no other party, an outside review is required. 

4) The Ombudsman has stated "They have not accepted the finding in my
report, and obviously hold quite different opinions about the issues." The
problem here is that the Ombudsman report on the complaints does not contain
a factual investigation of the complaints. The report is rejected by the
complainants because Ombudsman did not adhere to the professed duties of the
office. 

5. The Ombudsman has stated: "There is little point in reopening this
matter, because the system for submitting bulk complaints has changed very
substantially and Compliance has also changed in the way it operates to be
more vigorous and report in more detail. Regrettably the submitters do not
appear to have taken this into account." The first logical fallacy in this
statement is that it avoids discussion of the actual complaints by referring
to future, untested and therefore irrelevant events.  The second logical
fallacy is that the Ombudsman implies that the Compliance department needed
SUBSTANTIAL and VIGOROUS improvements without acknowledging what called for
these improvements, e.g., the failures listed in the original complaints. 

So, this leaves us serious questions about the Ombudsman's independence. In
its rejection of user complaints and general wording, the Ombudsman office
appears to act as a last line of defense for ICANN against the great
unwashed hordes. There is nothing independent, impartial, and neutral in
this operation of the Ombudsman office. The Ombudsman office has failed and
the posted response reflects that failure. We need an Ombudsman to deal with
the Ombudsman.

-------------------------------------

Garth Bruen

"If history is deprived of the Truth, we are left with nothing but an idle,
unprofitable tale" -Polybius