Please find below the Board's remarks for the
discussions on the next CCWG call, which I'm sending on behalf
of Bruce and Markus.
Kind regards,
Theresa
____
The Board appreciates the work by the
community on the first
readings of reactions to the public comment on the Third Draft
Proposal from
the CCWG-Accountability. In preparation
for the second reading, the Board provides these inputs to the
CCWG-Accountability
on inclusion of Human Rights in the Bylaws, Scope of IRP and
Scope of Community
IRP
On Inclusion of
Human Rights in the Bylaws, the Board has the following
reactions to the points
identified in the redline distributed after the first
reading before the CCWG.
The Board notes the continued discussion of
this issue on
the CCWG-Accountability list, and that there continues to be
some divergence
among the CCWG-Accountability on how to proceed among the
options
presented. As noted in its comments to
the Third Draft Report, the Board remains committed to
developing a Human
Rights Statement for ICANN, and will report to the community at
ICANN 55
Marrakech on progress on this work.
Marrakech is fast approaching, There has been a considerable amount
of work done by the community related to human rights in the
CCWG WP4 and in the CCWP HR. Has the Board reached out to those who
have undertaken this considerable work to discuss what such a
statement might look like and to work together with the community
and its experts in drafting such a statement? Despite a reference
to "working with the community" in the Board's comments to the 3rd
proposal, the statement above that "the Board will report to the
community" sounds like a Board-driven parallel exercise, which would
be unfortunate.
Thanks.
The
Board appreciates the import of this issue to the ICANN
community, and remains
committed to working alongside the community towards a
meaningful framework to
guide human rights considerations within ICANN’s mission.
Regarding inclusion in the ICANN Bylaws, the
Board supports
Option B, or allowing the WS2 effort on defining a framework to
proceed prior
to considering whether to include a human rights obligation in
the Bylaws.
The Board appreciates the consideration the
CCWG-Accountability has given to the timing concerns raised by
the Board in its
comments. Of note, the Board’s concerns
in introducing a human rights consideration in its Bylaws today
prior to the
completion of a framework was not the only concern raised. The
language presented by the
CCWG-Accountability for the Bylaws also raised concerns. As
stated in the Board’s comments:
While the Board
appreciates that the proposed interim Bylaw text is intended
to not place any
additional obligations on ICANN, the language could actually
be used to greatly
expand ICANN’s human rights obligations.
Some specific examples of concern include:
Inclusion of a human rights commitment
in the Bylaws would immediately allow for IRPs to be brought
on human rights grounds. Similarly, there could be lawsuits
relying on the Bylaws language filed against ICANN. When the
Bylaws commitment is vaguely stated, any interpretation of
the Bylaws language will be against ICANN, and have binding
impact on the community’s ability to define a framework.
Neither the IRP or the Courts will have any legal reason to
wait for the community to complete the next step, and could
make their own interpretations of the language.
The proposed Bylaws text, with
reference to “applicable law” to judge the acts of ICANN and
those with relationships with ICANN, leaves open the
question of which law should be applicable. This language
expands, as opposed to limits, the potential scope of human
rights challenges.
The language about “any entity having a
relationship with ICANN “ raises the suggestion that the
ICANN Bylaws have the power to bind those with relationships
with ICANN in how those entities respect, consider or
enforce human rights. ICANN does not have this power. For
example, registries and registrars contracted with ICANN do
not take on any human rights obligations because they
contract with ICANN. This language suggests that because
they have a relationship with ICANN, there are human rights
concerns that they could be obligated to address.
The language suggests that there is
already a framework within which ICANN processes complaints,
requests or demands for ICANN to enforce human rights
issues, which there is not. Indeed, there still appears to
be divergence within the community about what should be
considered as human rights considerations within ICANN’s
Mission. Without a framework, challenges could be raised
around issues that are not agreed to be within ICANN’s
Mission, such as access, content or education.
Leaving these types of
issues open puts the community, ICANN stakeholders such as
contracted parties,
and ICANN itself at risk. Courts or
binding IRP panels could be used to create precedent defining
what human rights
are within ICANN’s Mission. These determinations are better
left for the ICANN
community to sort out, instead of being imposed. Leaving these
questions open
for others outside of the ICANN community to define is not
consistent with
enhancing ICANN’s accountability. The Board urges that the
full scope of
defined work on human rights should include consideration of
impacts across all
of ICANN’s activities.
As noted by ICANN’s legal counsel, the
concern raised by the
Board is not primarily about an increase in the potential
litigation across
ICANN, but rather about the impact of
that litigation on the ICANN community, in the potential to
define ICANN’s
human rights obligations before the community has the
opportunity to complete
that work. The proposed limitation of
applicable laws does not provide much comfort, as there are no
limitations of
which laws will be suggested to be applicable to which parties.
This is not a trivial concern. Which court and which law will
be relied upon
to decide if human rights includes a requirement to make all
registrant data
public in an attempt to protect against abusive content on
websites? Or which court and which law will be relied
upon to require all registrant data to be made private to
recognize privacy
interests or the potential impact to third parties with which
ICANN does
business? It is examples such as these that demonstrate why the
ICANN community
needs to weigh in on where ICANN’s human rights obligations
start and stop,
before a court is invited to make those determinations.
Recommendation 7,
Scope of IRP:
The Board previously expressed concerns about
the IRP being
used for substantive appeals from process-specific expert
panels, and notes the
apparent agreement on the CCWG-Accountability to remove the
expert appeals
language from the scope of the IRP. Even
with this removal, the Board notes that any violation of the
ICANN Articles of
Incorporation or Bylaws that occurs in conjunction with the
consideration of an
expert panel can appropriately be the basis of an IRP. The Board
has the
following additional comments:
The IRP should not be used to determine
what documents are to be released as part of ICANN’s
Documentary Information Disclosure Policy (DIDP). If a DIDP
response is in violation of ICANN’s Bylaws/AoI, then an IRP
can lie on the grounds of a Bylaws/AoI violation. The Board
notes that a more substantive appeal process for the DIDP
could be developed as part of the DIDP review in WS2. The
development of a substantive DIDP appeal process was not
previously identified as a WS1 effort.
The Board supports the CWG-Stewardship
contingency that the IRP is made available as part of the
accountability for the performance of the naming function work
by PTI. The implementation of this must be done carefully so
as to not confuse ICANN’s obligations with PTI’s obligations.
The Board also supports the request from
the IAB that the protocol parameters are excluded from the
IRP.
The Board notes that there should be a
broad range of participants for the work of the IRP
implementation team (including jurists and those versed in
international arbitration).
The Board discourages the use of
exemptions to the already limited world of “loser pays”
outcomes of IRPs, such as a proposed exemption for non-profit
entities, as there should not be incentive for a certain group
of complainants to more easily bring IRPs if they are not
faced with the potential recourse for bringing IRPs on suspect
grounds.
Recommendation 4,
Scope of Community IRP:
The Board reiterates its concerns regarding
the inclusion of
expert panel appeals and substantive DIDP appeals, as stated in
regards to
Recommendation 7.
The Board appreciates the community
discussion regarding a
carve-out of the Community IRP as it relates to PDP outcomes.
The Board notes that, particularly with a
threshold of 3 SOs or ACs, there other potential for the filing
of a Community
IRP to pit parts of the community against other parts of the
community, such as
countering the Board’s acceptance of advice from Advisory
Committees. The Board encourages the CCWG-Accountability
to see if there are additional protections that can be
introduced so that
community resources are not used to challenge properly taken
actions from
another part of the community.
