[At-Large] Response to the Ombudsman's report

[Nick Ashton-Hart]

Dear Wendy:

I'm quite certain that there will be a public debate about the report, and
also that nobody can stop such a debate occurring. Nor am I aware of any
attempt to do so by any party, ICANN staff or otherwise; indeed, part of the
point of making reports such as that of the Ombudsman public is so precisely
that debate can occur.

I'm sorry to hear that you see my comments as disparaging as they were not
intended in that way and if they lend themselves to that interpretation you
have my apology.

Perhaps your comments to the committee about improving ALACs approval
process predated my involvement - or perhaps I need more coffee. In either
case, in this public forum, may I suggest that the present time would be
ideal to forward them for discussion?

On 16/02/07, Wendy Seltzer <wendy at seltzer.com> wrote:
>
> Thanks Nick,
>
> I'm sure none of us volunteered so that we could be publicly accused of
> negligence without getting a public opportunity to respond. I don't
> appreciate your further disparagements here. If any member of the public
> has further questions about the Ombudsman's investigation, I hope they
> will feel free to invite our further responses.
>
> Moreover, I have already made suggestions to the full committee and to
> the public about improving the ALAC's ALS approval process.  I have yet
> to see your report, but I look forward to offering similar substantive
> discussion of that.
>
> *WENDY*
>
> Nick Ashton-Hart wrote:
> > Wendy, I'd like to hope that the report can be discussed in a sober and
> > constructive environment, free of inflammatory language and incorrect
> > information. I can understand why there are members of the Committee,
> > especially those longer-serving members like yourself who have now  been
> > through their THIRD investigation by the Ombudsman of ALS Applications
> > handling in less than two years, who are upset at the moment.
> >
> > However, I would urge you to channel the emotion of the moment into more
> > positive activities than an unhappy continuation of finger-pointing.
> There
> > is a potential for constructive results to come from the investigation
> but
> > only if the lessons which are to be learnt from it are learnt, which
> will
> > not occur if the discussion about the contents of the report is held in
> an
> > emotional or perjorative way which is unfortunately what a number of
> your
> > comments lends themselves to.
> >
> > Spending more time in an 'us vs. them' debate also, frankly, is wasted
> > energy. Since you have been appointed to represent the community, I
> would
> > suggest to you that you take the high ground - not by trying to blame
> > others
> > but by trying to improve the system which you personally are a part of.
> >
> > As mentioned it is also very unfortunately the *THIRD* investigation of
> the
> > Committee by the Ombudsman relating to handling of ALS applications. No
> > other community has faced even *ONE* investigation of this kind. I would
> > strongly suggest to you that the community as a whole is hardly likely
> to
> > accept "it is the staff's fault again" as a response to the third
> > investigation of the same thing.
> >
> > As I have suggested to the ALAC as a whole, rather than continuing to
> point
> > fingers or alleging misconduct by the Ombudsman - who is hardly likely
> to
> > reach conclusions without evidence - it would be more productive for the
> > community as a whole for lessons to be learnt from this - THIRD -
> > investigation and the process improved. Lets move on and make lemonade
> from
> > the lemons, as the phrase (mostly!) goes.
> >
> > As you are aware, in hopes of helping to generate some lemonade, I am
> > drafting a submission to the Committee - which I am sure it will choose
> to
> > share with the Community as a whole - to give the ALS community and the
> > RALOs a much greater role in the approval of new applications for ALS
> > accreditation since it seems to me that the most fundamental right of a
> > constituency is for it to choose its membership, and to make the current
> > process more transparent and accountable to the community as a whole
> would
> > seem to me to be an obvious and constructive improvement. Since I know
> you
> > to be a passionate advocate for transparency and accountability I'm sure
> > you'll agree with the principle.
> >
> > As I have said to the Committee on more than one occasion, I am sure all
> of
> > you didn't volunteer your time in order to process large amounts of
> > membership applications and related documentations, but rather to work
> on
> > policy, and I'm sure that's equally true of the community as a whole.
> >
> > On 15/02/07, Wendy Seltzer <wendy at seltzer.com> wrote:
> >>
> >> It appears that the Ombudsman's "report" has been posted
> publicly.  Here
> >> is my personal response:
> >>
> >> The Ombudsman is quick to extol the virtues of Ombudsmanship (Report,
> >> p.15), but slow to put them into practice.  He praises the flexibility
> >> and equitable alternatives open to an ombudsman, as distinct from a
> >> court of law, then treats the At-Large Advisory Committee like the
> >> hostile target of a grand jury investigation with no opportunity to
> >> respond. Using selective quotation from interim drafts circulated on
> >> internal lists, he paints a skewed picture of the Committee's processes
> >> and conclusions, and therefore misses some of the key facts in the
> >> dispute.
> >
> > The Committee does not deny responsibility for some delays.  At the same
> >> time, the Committee was often barred from more rapid response by its
> >> ICANN-appointed staff, who unilaterally blocked Committee publication
> of
> >> vote results and then sent notifications to applicants without offering
> >> the Committee any opportunity to review or correct them.
> >
> > There are indeed problems to be addressed in the ALAC's functions, many
> >> of them deep structural problems in ICANN's construction of the ALAC,
> >> but the Ombudsman's determination that the Committee must be publicly
> >> shamed unfortunately misses the opportunity to make progress in
> >> resolving any of them.
> >
> >
>
>
> --
> Wendy Seltzer -- wendy at seltzer.org
> Visiting Assistant Professor of Law, Brooklyn Law School
> Fellow, Berkman Center for Internet & Society
> http://cyber.law.harvard.edu/seltzer.html
> http://www.chillingeffects.org/
>



-- 
-- 
Regards,

Nick Ashton-Hart
PO Box 32160
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