Re: [ga] ICANN Ombudsman Frank Fowlie

["Jeffrey A. Williams" <jwkckid1@xxxxxxxxxxxxx>]

Joop and all,

  Obvious for what?  Seems to me that Ed has not
said or done anything that warrents him being Censored.
Now perhaps Ed's last post to this forum did have some
information that was/is embarasing to ICANN.  However
that in no way should warrent him being censored.


-----Original Message-----
>From: Joop Teernstra <terastra@xxxxxxxxxxxxxx>
>Sent: Mar 1, 2010 7:36 PM
>To: Andy Gardner <andy@xxxxxxxxxxxxxxx>, ga@xxxxxxxxxxxxxx
>Cc: Edward Hasbrouck <edward@xxxxxxxxxxxxx>, ssene@xxxxxxxxxxxx, Rod Beckstrom 
><rod.beckstrom@xxxxxxxxx>
>Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
>
>
>It's obvious, isn't it?
> Sloppy censorship.
>
>----- Original Message ----- 
>From: "Andy Gardner" <andy@xxxxxxxxxxxxxxx>
>To: <ga@xxxxxxxxxxxxxx>
>Cc: "Edward Hasbrouck" <edward@xxxxxxxxxxxxx>; <ssene@xxxxxxxxxxxx>; "Rod 
>Beckstrom" <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>
>>>> Sent: Feb 28, 2010 3:56 PM
>>>> To: ga@xxxxxxxxxxxxxx
>>>> Cc: Rod Beckstrom <rod.beckstrom@xxxxxxxxx>, George Kirikos 
>>>> <gkirikos@xxxxxxxxx>
>>>> Subject: Re: [ga] ICANN Ombudsman Frank Fowlie
>>>>
>>>>
>>>> On 28 Feb 2010 at 7:41, "George Kirikos" <George Kirikos
>>>> <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://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
>>> Phone: 214-244-4827
>>>
>>
>>
>> 
>
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
Phone: 214-244-4827