Dear Colleagues,
Please find below a contribution by Seth Johnson. Seth was invited
during the Paris meeting to share his thoughts in writing.
Best,
Mathieu
-------- Message transféré --------
Sujet : Re: Comments Requested on CCWG-Jurisdiction Document
Date : Wed, 22 Jul 2015 02:07:49 -0400
De : Seth Johnson <seth.p.johnson(a)gmail.com>
Pour : Mathieu Weill <mathieu.weill(a)afnic.fr>
Copie à : acct-staff(a)icann.org <acct-staff(a)icann.org>, Cheryl
Langdon-Orr <langdonorr(a)gmail.com>, Hillary Jett
<hillary.jett(a)icann.org>, Steve DelBianco <sdelbianco(a)netchoice.org>,
Ergys Ramaj <ergys.ramaj(a)icann.org>, Jordan Carter
<jordan(a)internetnz.net.nz>, Burr, Becky <Becky.Burr(a)neustar.biz>, Thomas
Rickert (thomas(a)rickert.net) <thomas(a)rickert.net>
(pulling the last paragraph up to add one tiny but important edit)
> Fundamental rights are not a public policy issue like others — they
> are built into the foundation of a government claimed by the people.
> They also have implications for enhanced cooperation. Without
> addressing the particulars of many public policy areas (outside the
> scope of traditional Internet stewardship) being envisaged to be
> addressed through enhanced cooperation, it still should be noted that
> the issue of rights, including the change in the nature of rights that
> happens when you move to the international arena (even while taking
> recourse to a private corporate form), needs to be treated not as a
> public policy in itself, as if it were merely a "statutory" matter,
> something established by law or treaty enacted by governments, but
> rather it needs to be recognized as a cross-cutting issue, as a matter
> that affects many public policy areas in the transition.
. . . that affects both public policy areas and technical aspects in
the transition.
(eom; full original text below)
On Wed, Jul 22, 2015 at 1:34 AM, Seth Johnson <seth.p.johnson(a)gmail.com> wrote:
> Hi Mathieu and folks:
>
> ([Verbose] Preface)
>
> As requested, this note represents my comments regarding the document
> on the CCWG Accountability group’s scope with respect to the issue of
> jurisdiction (V4 attached without revisions). Please feel free to
> forward to the CCWG-Accountability list. They elaborate on my
> comments during the Paris meeting, where I indicated that this
> document mischaracterizes how the issue of jurisdiction relates to the
> group’s consideration of the issue of accountability.
>
> My request was that the stress tests be revisited/expanded to address
> the effect of the transition to the international arena on fundamental
> rights. This issue also affects how well we can place faith in the
> transition plan as you've defined it so far, but I believe the
> transition timeline should focus on making sure this concern is
> recognized and addressed before the NTIA is removed, rather than on
> making a deadline without addressing this consideration.
>
> Your approach has focused on constructing accountability mechanisms
> with the use of statutory powers available based on the corporate law
> in a particular jurisdiction (California in particular). An
> additional critical consideration is the implications of the
> transition in relation to fundamental rights. Fundamental rights are
> a key component of the stewardship context we've enjoyed thus far.
>
> I stated that the issue is not about whether the group can change
> jurisdiction, as this document characterizes it, but about addressing
> the accountability implications given the change in the nature of
> jurisdiction implied in the basic problem of removing the role of the
> US government in the form of the NTIA. It isn’t just an issue of what
> jurisdiction to incorporate the organization within, but the context
> the stewardship of the Internet operates within in terms of how the
> role of government is limited. I noted that the proper
> characterization of that change is to recognize that fundamental
> rights will not operate in the international arena as limits on
> governments the way they do within a domestic constitutional context.
>
> You've only just started addressing the problem of what happens in
> terms of rights when you remove the NTIA and the stewardship of the
> Internet is placed in the international arena. The system for checks
> and balances you have designed internal to the organization give
> recourse in relation to the organization, but the limit on governments
> that fundamental rights provide is also a critical accountability
> aspect of the stewardship context. The role of fundamental rights
> represents the unconscious aspect of the Internet's stewardship
> context that has been taken for granted and has not yet been
> recognized by the CCWG.
>
> The UN language of "human rights" expressed in treaties enacted by
> governments does not provide for rights that serve as a “trump card”
> on government acts, subjecting them to strict scrutiny. Neither does
> declaring a principle of having the same rights online as offline —
> since the international arena doesn’t support fundamental rights
> offline any more than it might online. This is about confronting the
> effect on accountability of the change in the status of fundamental
> rights as a basic feature of the stewardship context we've enjoyed —
> not a matter of incorporating a statement on human rights norms in
> organizational documents.
>
> This is also not about the capacity to sue ICANN, a private entity —
> it’s about recourse against governments through fundamental rights.
>
> (Commentary)
>
> The following three paragraphs are notes I prepared prior to
> commenting at the Paris meeting. I have added more below:
>
> The nature of fundamental rights is very different at the national
> level from rights at the international level. We can describe this in
> terms of standards of review. In the US, fundamental rights undergo
> "strict scrutiny" in the courts because the judiciary branch will
> reference the founding constitutional act of the governing structure,
> wherein the people asserted their rights as of prior importance to the
> activities of the government they authorize. This means that the
> judiciary will cancel a duly-enacted law by elected representatives in
> the legislature if it impinges on these rights. For courts to uphold
> a law that affects fundamental liberties, the law must fulfill a
> compelling state interest and be narrowly tailored to address that
> concern as specifically as possible.
>
> The international arena doesn't establish rights in the same way, but
> rather in the form of agreements among countries. The result is that
> the standard of review will be one of "balancing" (at best) and
> deliberations regarding rights in the international context would be
> about the intention of the governments involved in the enacting of
> international instruments. This means when international courts are
> called to consider issues of rights they will at best balance state
> interests against individual rights, so claimed national security
> interests will have much greater standing in the international arena
> as compared to rights than they do in the constitutional context.
> Such a judge is on much more tenuous and subjective grounds if she
> acts to overturn an international instrument, because governments are
> the ones laying the groundwork and there is no constitutional act
> whereby the people have set their rights as fundamental limits on the
> governments.
>
> The issue of human rights is a perennial one in the international
> arena. The proper approach to this issue is not to suppose that
> treaties (and other “soft law” arrangements) established among states
> will provide the same type of rights that various peoples of the world
> rely on within their own countries to set fundamental limits on what
> their governments are authorized to do. The implications of this
> issue should be considered by means of new stress tests, since the
> effect of the transition on fundamental rights may warrant special
> measures to secure this key form of accountability.
>
> (Further Points)
>
> The closest the CCWG Jurisdiction document comes to the question of
> how the transition affects accountability by removing the national
> government role is in level 5) of the multiple tiers the document
> describes in ways the issue of jurisdiction relates to accountability.
> Level 5 mentions freedom of expression but is focused on whether
> jurisdictions will override others on a set of issues. Other than
> that, the document finds jurisdiction relevant to CCWG accountability
> only in terms of accountability mechanisms and limits implied in
> California corporate law, and frames the relevant question for the
> group in terms of how to enhance accountability based on laws
> applicable under that jurisdiction. It thus encourages a focus on
> statutory law rather than the constitutional foundation and overlooks
> the question of how Internet stewardship relies on accountability of
> the government to fundamental rights secured by a constitutional
> foundation, and how that form of accountability is affected by the
> change in the nature of jurisdiction implied in removing the
> government.
>
> The question the group should be focused on is what happens to
> accountability given the change in the nature of the jurisdiction
> implied in the transition, not so much whether to change the
> jurisdiction as such. The group needs to acknowledge the effect on
> fundamental rights, and the accountability discussion should engage on
> what to do about that effect.
>
> This point applies regardless of whether the Internet's stewardship
> relates to the US (whether in relation to a government agency like the
> NTIA or in terms of the location of jurisdiction). The same
> protection based on fundamental rights would apply even if the
> Internet had arisen in and been "hosted" within a free constitutional
> context in another country.
>
> International or other than US and California is not a question that
> addresses the accountability issue substantively -- it just addresses
> whether we are getting independent of the US. The answer to that
> question given in this document (that the group is not charged with
> changing the jurisdiction, just with enhancing accountability within
> the organization) misses the real question of whether changing the
> nature of the jurisdiction (from NTIA involvement to NTIA not involved
> [+ private via CA/US corporation]) brings accountability questions.
> The other half of the answer ("Can Icann's accountability be enhanced
> depending on the laws applicable to its actions?") also appears to
> suggest the accountability issue is solely to be addressed in relation
> to laws -- apparently meaning statutes rather than the constitutional
> context.
>
> Not all accountability issues can be handled by internal checks and
> balances in the corporate structure, and corporate law is not
> constitutional law. For that matter, there's a real danger in a
> solution to Internet stewardship in the international arena that
> focuses on that approach, as it may confuse fundamental rights held by
> natural persons in free countries with recourse to powers exercised
> within corporations. There’s no reason why powers under corporate
> statute should not be used to support strong checks and balances
> within a corporate entity, but that does nothing to address the checks
> on governments citizens enjoy regardless of how a private organization
> functions.
>
> When you transition to a private structure and remove the role of a
> hosting free government, the implications include removing limits on
> government that have heretofore applied, leaving that private entity
> subject to intergovernmental forces which had been avoided while a
> free government limited by the fundamental rights of its own citizens
> was involved.
>
> The presence of recourse to fundamental rights as limits on the
> government is what accounts for the fact that the US actively avoids
> acts that would overtly meddle with communications-related fundamental
> rights — except for a few cautious (and covert) exceptions where the
> US has attempted to use the international arena and privatization for
> activities that do affect fundamental rights — i.e., cautious
> machinations on copyright or trademark via WIPO, or the covert
> projects for mass surveillance, pre-Snowden, via international routing
> and telecom privatization.
>
> Fundamental rights are not a public policy issue like others — they
> are built into the foundation of a government claimed by the people.
> They also have implications for enhanced cooperation. Without
> addressing the particulars of many public policy areas (outside the
> scope of traditional Internet stewardship) being envisaged to be
> addressed through enhanced cooperation, it still should be noted that
> the issue of rights, including the change in the nature of rights that
> happens when you move to the international arena (even while taking
> recourse to a private corporate form), needs to be treated not as a
> public policy in itself, as if it were merely a "statutory" matter,
> something established by law or treaty enacted by governments, but
> rather it needs to be recognized as a cross-cutting issue, as a matter
> that affects many public policy areas in the transition.
>
>
> Seth
