Got beef with ICANN? Why you may not want to use the Ombudsman

Complaining to the independent Ombudsman may not be the best way to start a beef with ICANN, and that’s according to the Ombudsman himself.

Herb Waye told DI this week that consulting him as a first port of call may well lock complainants out of escalating their complaints through his office in future procedures.

Earlier this week, I reported on a lawsuit filed by three so-far unsuccessful .hotel gTLD applicants, which among other things alleges that ICANN’s Request for Reconsideration appeals process is a “sham”.

Reconsideration has quite a high barrier to success, and complaints are rarely successful. Requests are dealt with by the Board Accountability Mechanisms Committee, a subset of the very same board of directors that passed the resolution being complained about, advised by the same ICANN lawyers.

But RfRs are also automatically sent to the Ombudsman for a determination before the BAMC looks into them, which should provide a valuable and ostensibly independent second set of critical eyes.

However, in practice this has almost never happened since the provision was added to the ICANN bylaws five year ago.

The .hotel plaintiffs tallied up the 14 RfRs related to the new gTLD program since 2017 and found that the Ombudsman had recused himself, without detailed explanation, on every single occasion. Their complaint in California Superior Court reads:

Neither ICANN nor the Ombudsman has provided any intelligible reason for this gross flouting of ICANN’s bylaws and the Ombudsman’s dereliction of duty, other than a naked and vague claim of “conflict of interest”. The lack of any Ombudsman process not only violates ICANN’s bylaws and its contracts with Plaintiffs, but it renders the promise of a fair and independent Reconsideration process null and illusory, and the notion of true accountability a farce.

The ICANN bylaws state that the Ombudsman must recuse himself from considering RfRs “involving matters for which the Ombudsman has, in advance of the filing of the Reconsideration Request, taken a position while performing his or her role as the Ombudsman”.

According to Waye’s explanation, this is a very broad standard indeed. He told DI in an email:

it is not just me but over 18(?) years of Office of the Ombudsman involvement in complaints or investigations. So I need to go back through the archives when I receive an RR to make sure neither Chris [LaHatte] nor Frank [Fowlie] have made a determination (it doesn’t have to be a public report (or position) or a report to the Board to qualify for recusal).

Among other factors, it also doesn’t have to be a past determination directly involving the RR requestor either… if the substance of the RR has been reviewed by the Office in the past, or if the RR is about an issue similar to one that has been the subject of a complaint and a determination, then recusal is also required to avoid inconsistencies or perceived bias.

He consults with his “independent outside counsel”, Dave Marglin, when figuring out whether recusal is necessary, he said.

Waye published an explanation of his role in Reconsideration on page 19 of the Ombusdman’s most-recent annual report (pdf).

I wondered whether a 2015 decision by Waye predecessor LaHatte related to the new gTLD program’s controversial Community Priority Evaluation might account for the spate of recusals over the last few years, but Waye would not be drawn.

“I can’t identify specifics about each recusal as I must at all cost avoid identifying past complainants or subjects of complaints,” he said. “As I mentioned, some published reports may be the reason for a recusal but it may also be the result of the RfR issue having passed through my Office prior to the RfR being filed as a complaint; which may or may not be a known fact, so I err on the side of caution and treat all recusals the same.”

Given that the Ombudsman also deals with sensitive interpersonal interactions, including sexual harassment complaints, a code of confidentiality could be a good thing.

But it also means that there are an unknown number of undisclosed topics, dating back the best part of two decades, that the Ombudsman is apparently powerless to address via the Reconsideration process.

And that list of untouchable topics will only get longer as time goes by, incrementally weakening ICANN’s accountability mechanisms.

It seems to me that for companies with no interest in confidentiality but with serious complaints against an ICANN board action, complaining to the Ombudsman as the first port of call in a case that would likely be escalated to Reconsideration, Cooperative Engagement Process and Independent Review Process may be a bad idea.

Not only would they be locking the Ombudsman out of their own subsequent RfR, but they’d be preventing him or her getting involved in related RfRs for eternity.

Waye does not disagree. He said:

I think anyone considering bringing a complaint to the Office of the Ombuds should now consider their desired outcome if there is any possibility the issue may be something that could eventually take the RfR route. Do they want an informal (potentially confidential) determination from the Ombuds or do they want something more “public” from the Ombuds in the form of a substantive evaluation made directly to the BAMC. It’s still a new process and my participation in the RfR accountability mechanism is still a work in progress for the people considering using the RfR. But it’s what the community wanted and we will make it work.

It strikes me that the Reconsideration policy outlined in the ICANN bylaws is, by accident or design, self-terminating and opaque. It becomes less useful the more often it is used, as the range of topics the Ombudsman is permitted to rule on are slowly whittled away in secret.

It also occurs to be that it might be open to abuse and gaming.

Worried that a rival company will try to use Reconsideration to your disadvantage? Why not file a preemptive Ombudsman complaint on the same topic, forcing him to recusing himself and leaving the eventual RfR in the hands of the far-from-objective BAMC and ICANN board?

Waye said:

I suppose it would be possible, though it would require me making a determination or taking a position of sorts related to the eventual RfR… a complaint doesn’t automatically mean recusal. And of course it would mean me and my counsel not seeing through the “gaming” agenda and declining the complaint at the outset.

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Tagged: .hotel, accountability, bamc, cep, ICANN, irp, new gTLDs, Ombudsman, reconsideration, transparency