Hi Anne, You wrote quite a long e-mail, but I guess my feedback as co-chair is only required on the procedural aspect. As you know, the plenary has not taken any decision on this. Also, we will not change our working methods to collaborative drafting in the plenary. In this particular instance, it was our intention to get the subgroup’s report discussed and approved during our plenary calls. In retrospect, I should have made clearer that we were just trying to identify whether there was more need for discussion in the sub team or whether we can sort the latest remaining questions sort of „on the fly“. Niels has since clarified the position of the subgroup. Had we had more time, I am sure we would have put that on the record during the call already and thereby avoid confusion. I hope this helps. Best, Thomas
Am 02.10.2017 um 21:54 schrieb Aikman-Scalese, Anne <AAikman@lrrc.com>:
Thomas et al, What I am trying to understand is the procedure involved with new language being proposed at the plenary level with no prior consideration of that language at the subgroup. I had made specific proposals to include certain Ruggie language at the subgroup level with specific reference to incorporating Ruggie Principle 18 into the language that is applicable to ICANN the organization. (In fact, I have been advocating reference to Ruggie 18(b) from the beginning of participating in WS2-Human Rights.) So if we are considering new language at the plenary, I want to throw in my own recommendation that we refer specifically to Ruggie Principle 18 as a compromise position.
I do not understand this black and white FACE-OFF as to "Zero Ruggie" or " All Ruggie". David McCauley is quite right that not all Ruggie principles make sense for ICANN since it is not a typical "business" and its mission is limited, especially as to not interfering with content. Much of what is contained in Ruggie Principles seeks to reach "all business relationships" and would thus exert influence over content, i.e. Ruggie would no doubt require putting provisions in Registry Agreements and Registrar Agreements that change obligations of these contracted parties to exert influence over registrants regarding Human Rights principles. While this may be appropriate for a voluntary Public Interest Commitment on the part of a registry, it is certainly not appropriate as a “top-down” ICANN org policy. In the ICANN environment, following all Ruggie principles creates too broad a sweep by far. In addition, there is no other "business" that has used Ruggie that follows the multi-stakeholder bottom-up policy process, a process unique to ICANN.
Mark Carvell got the WS2 drafting team on a call at one ICANN meeting with someone from the UN (with experience implementing Ruggie) and I specifically asked whether she had experience implementing Ruggie with an organization that operated on the bottom-up Multi-Stakeholder Model. Jorge Cancio was also in the room on this call and asked several questions. Her response was (and I paraphrase) "No, but ICANN is a quasi-governmental organization and has a lot of power to influence Human Rights going forward". So for anyone who feels that ICANN is a quasi-governmental organization, they will push ICANN the organization in this direction without remembering the applicable law limitation and the fact that ICANN is NOT A QUASI-GOVERNMENTAL organization and its policy development is not the top-down process followed by other non-profits.
Certain Ruggie Principles may work well within the limited mission of ICANN, most notably Principle 18, shown below my signature. Others, as pointed out in a very thoughtful manner by David McCauley's post to the WS 2 HR list, are dangerous and would impose limits on content as well as increased difficulty in enforcing property rights (including Intellectual Property rights) which are not consistent with Human Rights. While I may strongly disagree with certain views that could be posted at second level domains, ICANN is not the place to try to regulate them. And I disagree with the proposition that there should be an absolute right to post anonymously on the Internet as advocated by Article 19. (Although I agree that monitoring “hate speech” is a very dangerous road to go down.) It seems to me the highest principle here is disclosure, in other words, “Consider the Source”.
Regarding the Human Right to privacy, recently it was noted that the Russian government may have been the true force and money behind several Facebook ads attempting to influence U.S. elections. So now Facebook is cooperating to try to prevent that. Why? Because people should know the bias associated with statements when there is no "fact check" in place. There is also no "fact check" on content posted at second level domains and these are now “unlimited” in many respects. Shouldn't people know where these opinions are coming from even if it's not the Russian government? What if it's Breitbart? How should these concerns be balanced with the right to privacy of the individual? (Organizations can easily use individuals to post ads and advocate opinions. In addition, who decides whether an association of individuals who believe similarly would have no right to privacy?) Which second level domains were being used to influence US elections and do the registrants have a right to privacy for everything said on those domains as well? Does it also apply to everything they sell on the domain to raise money to place their Facebook ads? T-shirts? Coins? Hats? I would say, “Consider the Source” in all cases. And be concerned as to why the source does not want to disclose itself. Take that into account. Is it for nefarious purposes or is it for legitimate fear of unjust consequences – e.g. second level registrations at .gay?
As an organization, ICANN should not overreact to Snowden and to unjust laws in "outlier" governments. Failure to balance privacy rights with other considerations related to policies that develop trust and confidence in the worldwide web will not only result in consumer harm, it could even throw elections. "Consider the Source" is the best adage for both opinions and products offered on the Internet. This does not mean that the Spanish government should be able to shut down .cat, in fact it means the opposite. Governments who stand for free speech and privacy (and the legal systems established by those governments) should be protecting and enforcing those rights.
If the “Considerations” document is now open to rewriting at the plenary level, then shouldn't we be considering other alternative proposals that were rejected by the drafting team? The most important Ruggie Principle for faithfulness to the ICANN bottom-up Multi-Stakeholder model appears below my signature, that is Ruggie Principle 18. As this discussion is being developed further in the plenary, please keep in mind that Ruggie calls for a Grievance Procedure and that the Core Value itself contemplates both a Request for Reconsideration and an Independent Review Panel process in relation to Human Rights claims.
Anne
Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com <mailto:AAikman@lrrc.com> _____________________________ <image002.png> Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 Ruggie Principle 18. In order to gauge human rights risks, business enterprises should identify and assess any actual or potential adverse human rights impacts with which they may be involved either through their own activities or as a result of their business relationships. This process should: (a) Draw on internal and/or independent external human rights expertise; (b) Involve meaningful consultation with potentially affected groups and other relevant stakeholders, as appropriate to the size of the business enterprise and the nature and context of the operation.
Hi,
On 29-Sep-17 19:59, Aikman-Scalese, Anne wrote:
So what was everyone on the plenary CCWG- ACCT call yesterday referring to when they objected to the "compromise text" that was submitted to the CCWG list without having gone through the usual procedures in the subgroup?
It seems to me that once an issue is described as having no consensus in a subgroup and there is a declaration that none is reachable, the next step is to take the question to the plenary for plenary discussion. Seems to me this is especially the case when a minority view is attached to a proposed recommendation.
This is not the first time a knotty issue has been brought to the plenary or the first time a subgroup was given the opportunity to reconsider a subgroup decision that was not accepted at the plenary level.
avri
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