Comments on ICANN ombudsman for Board of Directors

["David Griffiths" <dwg@xxxxxxxxxxxxxxxxxxxxxx>]

Dear ICANN Board of Directors,



I would like to make some comments in support of the work being carried out by 
Garth Bruen of Knujon in relation to industry non-compliance matters. I also 
wish to comment on the rejection of concerns I raised about non-compliance 
matters that affect me personally, and what I viewed to be a wholly 
unsatisfactory outcome of the ICANN ombudsman investigation into them.



Firstly, I should say at once I have read Garth Bruen's comments to you in 
detail, and support every one of them. I will not, therefore, dwell on their 
content as you already have that on record.



Secondly, I should like to add some observations of my own regarding the manner 
in which the ombudsman investigation was conducted.



When I made an initial submission to the ombudsman (Chris LaHatte), his first 
response was to inform me that he had no power to prevent spam, and he appeared 
to wish to excuse himself from further action. I had to remind him that the 
submission I made was not in any expectation of anyone "stopping" spam; the 
matter raised was one of a failure of compliance, and this clearly fell within 
his remit to deal with. I found it surprising he had to be told this.



I made a number of submissions to the ombudsman, some of which he incorporated 
into his report. What I found disquieting, however, was:



  a.. The draft report was issued without any indication of a deadline by which 
responses to it should be submitted.


  a.. The final report was issued as a fait accompli little more than a week 
later, without any warning that the deadline (if indeed there was one) was 
approaching. It was almost as if the ombudsman did not wish further comment or 
corrections.


It appears to me that anyone conducting an investigation in the hope of taking 
a reasoned and balanced view would invite as much response to the draft as 
practical, and make it clear when these responses would be required by. Any 
draft, by its nature, is likely to suffer from errors and omissions. My 
expectation from a process seeking the truth is that it should maximise 
reasonable opportunity for comment at the draft stage. This was not achieved. 
Instead, the ombudsman moved with what I considered indecent haste to the final 
report. Subsequently, Garth Bruen raised a number of detailed factual 
inaccuracies and other problems with the final report. I also made some more 
general comments to the ombudsman directly (which I am happy to submit to you 
if you wish), commenting specifically on what I judged to be his capitulation 
to the status quo, and abdication of responsibility. His response was:

Dear David

Thank you for the remarks. I do not intend debating this with you or the others.

Regards

Chris LaHatte

Ombudsman

Perhaps if Chris had given some consideration to making proper provision for us 
to register comments and corrections before closing the report, post factum 
"debating" as he describes it, would have been unnecessary.



My other overriding impression of the ombudsman's report was that it put the 
best possible complexion on ICANN activities and industry compliance, while at 
the same time it missed few opportunities to imply that internet users who 
complained did not really understand how the industry worked or what they were 
talking about.



Stepping back and looking at the long and generally unsatisfactory (in my view) 
history of compliance enforcement, I wish to state that:



  a.. As an internet user I used ICANN procedures to file legitimate complaints.


  a.. The ICANN Compliance department did not properly handle my complaints, 
nor enforce the registrar contracts as written.


  a.. As an internet user I filed a complaint with the ICANN ombudsman 
regarding the failure to enforce the registrar contracts as written.


  a.. The ombudsman did not properly investigate my case, and seemed instead to 
be determined to bring it to a close without upsetting anyone in the domain 
industry. I am not, therefore, satisfied this was a proper investigation.



Yours faithfully,



David Griffiths