Re: [ga] ICANN Ombudsman Frank Fowlie

[Joe Baptista <baptista@xxxxxxxxxxxxxx>]

I guess Denise is a bit sloppy when it comes to censorship.

Looks like Hasbrouck is now on the ICANN censor list.

regards
joe

On Tue, Mar 2, 2010 at 1:47 PM, Hugh Dierker <hdierker2204@xxxxxxxxx> wrote:

> What could possibly be the reason for this now?  I thought they took away
> the censoring from Kent and gave it to Denise.
>
> --- On *Tue, 3/2/10, Joe Baptista <baptista@xxxxxxxxxxxxxx>* wrote:
>
>
> From: Joe Baptista <baptista@xxxxxxxxxxxxxx>
>
> Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
> To: "Joop Teernstra" <terastra@xxxxxxxxxxxxxx>
> Cc: "Andy Gardner" <andy@xxxxxxxxxxxxxxx>, ga@xxxxxxxxxxxxxx, "Edward
> Hasbrouck" <edward@xxxxxxxxxxxxx>, ssene@xxxxxxxxxxxx, "Rod Beckstrom" <
> rod.beckstrom@xxxxxxxxx>
> Date: Tuesday, March 2, 2010, 7:51 AM
>
>
> Rod:
>
> Stop censoring this list.
>
> regards
> joe baptista
>
> On Mon, Mar 1, 2010 at 8:36 PM, Joop Teernstra 
> <terastra@xxxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=terastra@xxxxxxxxxxxxxx>
> > wrote:
>
>>
>> It's obvious, isn't it?
>> Sloppy censorship.
>>
>> ----- Original Message ----- From: "Andy Gardner" 
>> <andy@xxxxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=andy@xxxxxxxxxxxxxxx>>
>>
>>
>> To: 
>> <ga@xxxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=ga@xxxxxxxxxxxxxx>
>> >
>> Cc: "Edward Hasbrouck" 
>> <edward@xxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=edward@xxxxxxxxxxxxx>>;
>> <ssene@xxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=ssene@xxxxxxxxxxxx>>;
>> "Rod Beckstrom" 
>> <rod.beckstrom@xxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=rod.beckstrom@xxxxxxxxx>
>> >
>> Sent: Tuesday, March 02, 2010 11:06 AM
>>
>> Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
>>
>>
>>
>>>
>>> I'm confused.
>>>
>>> Your reply that you just sent appears on the GNSO archive...
>>>
>>> http://gnso.icann.org/mailing-lists/archives/ga-200709/msg03654.html
>>>
>>> Yet Mr Hasbrouck's original message does not.
>>>
>>> Does anyone have an explanation for this?
>>>
>>>
>>> On Mar 1, 2010, at 3:06 PM, Jeffrey A. Williams wrote:
>>>
>>>
>>>> Ed and all,
>>>>
>>>>  Thank you for chiming in on this and providing as a reminder
>>>> the improper actions regarding bylaw requirement and historical
>>>> information there unto regarding an Ombudsman.
>>>>
>>>> Clearly and for a number of years now many of us have seen
>>>> a lack of compliance by ICANN's own board and staff as well
>>>> as legal council in respect to ICANN's own bylaws.  This is yet
>>>> another example of same and a long and sorted historical
>>>> list of said occurences accordingly.
>>>>
>>>>
>>>> -----Original Message-----
>>>>
>>>>> From: Edward Hasbrouck 
>>>>> <edward@xxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=edward@xxxxxxxxxxxxx>
>>>>> >
>>>>> Sent: Feb 28, 2010 3:56 PM
>>>>> To: 
>>>>> ga@xxxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=ga@xxxxxxxxxxxxxx>
>>>>> Cc: Rod Beckstrom 
>>>>> <rod.beckstrom@xxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=rod.beckstrom@xxxxxxxxx>>,
>>>>> George Kirikos 
>>>>> <gkirikos@xxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=gkirikos@xxxxxxxxx>
>>>>> >
>>>>> Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
>>>>>
>>>>>
>>>>> On 28 Feb 2010 at 7:41, "George Kirikos" <George Kirikos
>>>>> <gkirikos@xxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=gkirikos@xxxxxxxxx>>>
>>>>> wrote:
>>>>>
>>>>>  Or, he can do the right thing, break from the past, and
>>>>>>> make an example of Frank Fowlie, a clear message to other
>>>>>>> ICANN staffers that they need to start doing better or
>>>>>>> expect to no longer work for ICANN.
>>>>>>>
>>>>>>
>>>>> There *should* be an opportunity to consider this. If and when the
>>>>> Board
>>>>> considers appointing an Ombudsman, and if Dr. Fowlie were to be
>>>>> proposed
>>>>> for appointment to that office, there would be an opportunity for
>>>>> public
>>>>> comment on his actions to date, and suitability for that office.
>>>>>
>>>>> However, ICANN has *never* properly appointed an Ombudsman in
>>>>> accordance
>>>>> with the Bylaws. ICANN refers to Dr. Fowlie as ICANN's Ombudsman, and
>>>>> he
>>>>> describes himself as ICANN's Ombudsman, but that is incorrect.
>>>>>
>>>>> I have pointed out repeatedly that the Bylaws specifically require that
>>>>> the Ombudsman must be appointed by the Board, and that an initial
>>>>> appointment of an Ombudsman is only for 2 years, after which it it is
>>>>> subject to renewal, again by the Board and only the Board.
>>>>>
>>>>> There is no record of any Board resolution to appoint or renew the
>>>>> appointment of an Ombudsman.
>>>>>
>>>>> ICANN issued a press release stating that an Ombudsman had been
>>>>> appointed
>>>>> on a date when there was no publicly-disclosed Board meeting.  There is
>>>>> no
>>>>> record of a Board meeting on that date, a Board resolution to appoint
>>>>> an
>>>>> Ombudsman, or a Board resolution to delegate authority to appoint an
>>>>> Ombudsman. (Such delegation would be, I believe, in violation of the
>>>>> Bylaws, but the issue is moot because the Board has never publicly
>>>>> voted
>>>>> to make such a delegation.)  More than two years have passed, but there
>>>>> is
>>>>> no record of any Board vote to renew the appointment of an Ombudsman.
>>>>>
>>>>> The requirement that the Ombudsman must be appointed by the Board (and
>>>>> not
>>>>> merely "by ICANN', leaving it open to e.g. a decision of the CEO or
>>>>> other
>>>>> staff), was included in the Bylaws for good reason, and cannot be
>>>>> ignored.
>>>>>
>>>>> No competent, diligent lawyer who has reviewed ICANN's actions against
>>>>> the
>>>>> requirements of the Bylaws could conclude or advise in good faith that
>>>>> ICANN has complied with those requirements for appointment of an
>>>>> Ombudsman
>>>>> by the Board (and in accordance with the other procedural rules for
>>>>> Board
>>>>> decision-making, including the maximum feasible transparency).
>>>>>
>>>>> No competent, diligent, member of the Board who has reviewed ICANN's
>>>>> actions against the requirements of the Bylaws could conclude that
>>>>> ICANN
>>>>> has complied with those requirement for appointment of an Ombudsman.
>>>>>
>>>>> The failure of the Board to properly appoint an Ombudsman is further
>>>>> evidence of the lack of competence, due diligence, and/or good faith of
>>>>> ICANN's legal counsel, and of the Board.  In particular, it is evidence
>>>>> of
>>>>> the unjustified reliance of the Board on bad advice from staff and
>>>>> counsel, and the failure of Board members to carry out their own due
>>>>> diligence and exercise independent judgment.
>>>>>
>>>>> And, of course, the failure to properly appoint an Ombudsman goes along
>>>>> with the failure of the reconsideration Committee to act in accordance
>>>>> with the Bylaws, and the failure to properly develop and approve an
>>>>> independent review provider and policies for independent review.  As
>>>>> with
>>>>> the Ombudsman, ICANN claims to have such a provider and such policies,
>>>>> which were used with ICM Registry, but they were not developed or
>>>>> approved
>>>>> in accordance with the requirements of the Bylaws for policy
>>>>> development.
>>>>>
>>>>> The arbitrators (not a proper independent review in accordance with the
>>>>> Bylaws, but nonetheless an outside arbitration) concluded that ICANN
>>>>> had
>>>>> not acted in accordance with ICANN's Bylaws.  ICANN needs to do several
>>>>> things to acknowledge and act on that finding.  One of those things is
>>>>> to
>>>>> implement its accountability and transparency Bylaws, including by (1)
>>>>> properly appointing an Ombudsman, (2) directing the reconsideration
>>>>> Committee to act in accordance with the Bylaws, and reconsidering those
>>>>> reconsideration requests that were decided on grounds  forbidden by the
>>>>> Bylaws, and (3) conducting a proper policy development process  to
>>>>> select
>>>>> an independent review provider and adopt procedures for independent
>>>>> review.
>>>>>
>>>>> As one of those (along with Karl Auerbach and others) whose requests
>>>>> for
>>>>> independent review have been pending for years without any action on
>>>>> them
>>>>> by ICANN, I reiterate my availability and eagerness to hear from ICANN
>>>>> about this, and to work with ICANN and the Internet community to help
>>>>> bring ICANN into compliance with its Bylaws. I am disappointed that
>>>>> this
>>>>> issue is not on the (preliminary) agenda for the Nairobi meeting.
>>>>> Sincerely,
>>>>>
>>>>> Edward Hasbrouck
>>>>> http://hasbrouck.org/icann
>>>>>
>>>>>
>>>>> ----------------
>>>>> Edward Hasbrouck
>>>>> <edward@xxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=edward@xxxxxxxxxxxxx>
>>>>> >
>>>>> <http://hasbrouck.org>
>>>>> +1-415-824-0214
>>>>>
>>>>>
>>>>>
>>>> Regards,
>>>>
>>>> Jeffrey A. Williams
>>>> Spokesman for INEGroup LLA. - (Over 294k members/stakeholders and
>>>> growing, strong!)
>>>> "Obedience of the law is the greatest freedom" -
>>>>  Abraham Lincoln
>>>>
>>>> "Credit should go with the performance of duty and not with what is very
>>>> often the accident of glory" - Theodore Roosevelt
>>>>
>>>> "If the probability be called P; the injury, L; and the burden, B;
>>>> liability
>>>> depends upon whether B is less than L multiplied by
>>>> P: i.e., whether B is less than PL."
>>>> United States v. Carroll Towing  (159 F.2d 169 [2d Cir. 1947]
>>>> ===============================================================
>>>> Updated 1/26/04
>>>> CSO/DIR. Internet Network Eng. SR. Eng. Network data security IDNS. div.
>>>> of
>>>> Information Network Eng.  INEG. INC.
>>>> ABA member in good standing member ID 01257402 E-Mail
>>>> jwkckid1@xxxxxxxxxxxxx<http://us.mc529.mail.yahoo.com/mc/compose?to=jwkckid1@xxxxxxxxxxxxx>
>>>> Phone: 214-244-4827
>>>>
>>>>
>>>
>>>
>>>
>>
>
>
> --
> Joe Baptista
>
> www.publicroot.org
> PublicRoot Consortium
> ----------------------------------------------------------------
> The future of the Internet is Open, Transparent, Inclusive, Representative
> & Accountable to the Internet community @large.
> ----------------------------------------------------------------
>  Office: +1 (360) 526-6077 (extension 052)
>     Fax: +1 (509) 479-0084
>
> Personal: http://baptista.cynikal.net/
>
>
>


-- 
Joe Baptista

www.publicroot.org
PublicRoot Consortium
----------------------------------------------------------------
The future of the Internet is Open, Transparent, Inclusive, Representative &
Accountable to the Internet community @large.
----------------------------------------------------------------
 Office: +1 (360) 526-6077 (extension 052)
    Fax: +1 (509) 479-0084

Personal: http://baptista.cynikal.net/