The office of the ombudsman was one of ICANN’s early attempts to strengthen its accountability. Any hope that an independent Ombudsman would make a major contribution to that goal were quickly dashed, however. The office was not all that independent – the ombudsman is hired and fired by the Board and reports to the Chairman. Though the individual hired for the office, Frank Fowlie, is supposed to be independent of the staff, there is little doubt about where his solidarity lies. One civil society activist involved in ICANN complained that after filing a first Ombudsman claim against a staff member, within a week many staff members knew that the complaint had been filed and knew of its content. Needless to say, that person never bothered with any more appeals to the ombudsman. Additionally, Fowlie chose to narrow the focus of the office to minor procedural issues at the expense of more important controversies about fairness and discrimination in the policy making process.
Whereas most Ombudspersons serve a fixed and limited term, Fowlie’s was indefinite. He is now in his sixth year in that position. His annual reports are relentlessly self-promotional, as if he really wants to hang on to this job.
If the value-add of the Ombudsman’s office is unclear, the negatives are now very clear indeed. About a week ago the Ottawa Citizen published a story about Fowlie’s angry confrontation with a flight attendant after they failed to serve him a meal on a Paris – Montreal flight. The airline staff accused him of swearing and shouting at them. When the service director on the flight invited Fowlie to the galley to discuss the problem, she claimed that the confrontation escalated: Fowlie became “physically imposing” and pointed his finger in her face. Fowlie was taken off the flight when it landed in his connecting city Montreal and had to stay there overnight. Claiming that he was treated unfairly, ICANN’s Ombudsman initiated a dispute with the Canadian Transportation Agency. But Fowlie lost that dispute. Apparently, the CTA found the airline staff’s version of the story more convincing than his.
Anyone can have a bad day on an airplane. As a blog for the Ombuds professionals asked, is it fair to hold Fowlie to a higher standard than normal human beings? Perhaps so, in this case. What makes the Air Canada incident important is the way it relates to Fowlie’s campaign for imposing standards of “civil discourse” on ICANN participants. Last year, Fowlie took it upon himself to repeatedly scold ICANN participants about their language and civility. In one particularly lurid report, he declared that “ICANN is facing a civility crisis.”In doing this, Fowlie seemed to re-direct the resources of his office to focus on defending ICANN, Inc.’s employees and favored community members against harsh words, rather than on mediation and redress for community members who felt wronged by what was going on there. The focus of the office was no longer: how can I resolve the public’s complaints, but: how can I get that unruly public to behave itself?
Civil and respectful discourse is of course always preferable. The problem is that when the political stakes are high and many conflicts or injustices occur, people in a free and open political environment will inevitably express themselves in ways that won’t be perceived as “nice” by others. To use a simple example close to home, if someone stands up in the New York State legislature and claims that certain key members are corrupt and irresponsible, it may not be nice and it may not be respectful but it happens to be true.
Civil discourse campaigns, especially when they come from the top down, can easily be used to suppress meaningful dissent and discussion. Charges of a lack of civility always seem to be directed against participants who are out of power – an oppressed group expressing frustration at their treatment or challenging the mainstream. Those who have the upper hand in ICANN politics never seem to be the target of these accusations. The problem with civility campaigns is that they focus attention on the rhetoric and speech acts of the contestants rather than the real politics, conflicts of interests and injustices going on.
That background gives the Air Canada incident much more meaning. It is clear from the evidence that in practice, Fowlie is no more civil than the rest of us; perhaps even less so. It is also clear from his decision to pursue a dispute resolution process that Fowlie believed that his behavior, which was neither respectful nor civil according to the people in charge on that airplane, was justifiable under the circumstances. There is something really delicious about the fact that the man who has shown so little interest in the frustrations of people who get rolled by ICANN processes lost his temper over a missed meal. I wonder if he now has a bit more sympathy for the sometimes intemperate language used by people in the ICANN community who think that fundamental rights of free expression or privacy or consumer interests are being lost. The stakes are a bit higher than a missed meal.
But Frank Fowlie seems to have learned nothing from this incident. At the Nairobi ICANN meeting this week, the man who treated his waitpersons in Business Class without respect and civility stood up and resumed the same old line. He boasted that the ICANN Board had passed a resolution to “provide at least annual reminders of the Expected Standards of Behavior to the membership of ICANN’s supporting organizations and advisory committees, and to consider the other proposals by the Ombudsman to enhance civility.” No mention was made of the Air Canada incident. No mention was made of the fact that the Board wisely ignored almost all of his recommendations to force us all to behave more properly, including censorship of comments posted to websites, the creation of an “Ethics Officer” to police uncivil discourse, the funding of a university study on “the effects of bullying and uncivil behavior on participation in ICANN processes,” etc.
Civil society activists within ICANN have always known that there was a real bias to Fowlie’s campaign for civility. Last Fall, when the noncommercial stakeholders were in revolt against the staff’s unfair and discriminatory treatment of their attempt to form an independent stakeholder group, Fowlie intervened in a way that not only showed that he would not be an impartial Ombudsman, but also that he would play the “civil discourse” card to tilt the field against people who challenged the policy staff.
In the midst of the battle over formation of the NCSG, a member of ALAC filed a complaint to the Ombudsman about the chair of NCUC. Fowlie took an email exchange between the two that was part of the complaint and – without even affording the NCUC chair a chance to respond to the ALAC member’s complaint, published snippets of it on his blog and asked “I wonder if community members would consider the following sorts of dialogue to be civil and respectful?”
Although the names had been removed, this sparked a firestorm of comment on his blog (something like 36 comments). Some of the quotations Fowlie used were taken out of context completely; others were not objectionable. One person accused him of “outing” the parties to the dispute, because anyone could Google the quote and find it on a publicly archived list. Fowlie disingenuously claimed that the snippets were “selected randomly” from community email lists. I read this comment with interest, as a social scientist reasonably familiar with random selection techniques. I added a comment to his blog inquiring what random techniques he had used, and noting that the email exchanges he was quoting were taken from one list involving two email exchanges between two parties to a dispute before him. It was clear that he was already taking sides in the case, even before he had heard from both sides. These comments were removed by Fowlie after only a few hours. Later, he took the whole blog down and replaced it with this: “Dr. Frank Fowlie would like to thank members of the community for their thoughtful comments on a recent posting [on] civility. The Ombudsman reminds the community of the ICANN Accountability and Transparency Frameworks and Principles…” Some of the content was copied and distributed on the NCUC listserv. There you can see for yourself.