Can second every word Matt said here. Cheers, Tanya On 03/10/17 12:47, Matthew Shears wrote:

As Anne, I would like to know both the procedure and justification for "new language being proposed at the plenary level with no prior consideration of that language at the subgroup"?

I also do not understand why we are characterizing the positions as "Zero Ruggie" or " All Ruggie". As Anne notes, "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. ... In the ICANN environment, following all Ruggie principles creates too broad a sweep by far." These points were made in the sub-group discussions and on the lists on numerous occasions. And the work of the sub-group is not Zero Ruggie - this is a mis-characterization.

I also do not believe that it is appropriate to rewrite the “Considerations” document is at the plenary level. The considerations document as it stands - and agreed by the sub group - should provide all that is needed in terms of references to Ruggie.

Matthew

On 02/10/2017 20:54, Aikman-Scalese, Anne wrote:

...

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>

_____________________________

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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Thank you Greg. I would like to second one more point that is expressed so clearly by Greg: that the new language is trying to change post factum the reality, which is: we didn't reach consensus on the suitability of Ruggie. This is clearly expressed in the FoI (and we are still recommending Ruggie!), and this can not be changed unilaterally. Moreover, for many of us this was an important fact to express in the FoI to eliminate any risks of misinterpretation. Changing this will water down this important part of the FoI, create contradictions in what we propose and might bring back all the concerns we expressed about the risks. The proposed language cannot be discussed without bringing back discussion about Ruggie, risks, etc in full. The current FoI language already mentions Ruggie and suggests to use them if appropriate. The FoI leaves it to SO/ACs to further apply the Core value in accordance with their processes. This stance leaves those submitting the dissenting opinion - as it is only GAC members - to bring more Ruggie during the GAC application of the core value, if there is a strong belief that such application is necessary. We do not have the absence of any reference to Ruggie in the current FoI text. I do not see how Ruggie principles are discriminated in the current language compare to what is proposed. I don't see clearly how the proposed text is going to reinforce what is *already* being in the FoI about Ruggie. However, I clearly see how a "little bit more Ruggie" will break the current balance. If we are going to change the text, we need to add all the qualifying clauses as proposed by Greg. I would fully support this. Warm regards, Tanya On 03/10/17 17:05, Greg Shatan wrote:

Like Tatiana, I share the concerns that Anne and Matthew expressed. It also seems necessary to clarify that the proposed new language would change the *FoI* itself, advocating the use of Ruggie to interpret the Bylaw. The Considerations, which would not be changed under this proposal, stand in direct conflict to that stance:

With regards to the UN Guiding Principles for Business and Human Rights, *no consensus was reached as to their suitability for interpreting the Core Value*. However with regard to the implementation of the Core Value *certain aspects of the UN Guiding Principles for Business and Human Rights could be considered* as a useful guide in the process of applying the Human Rights Core Value. There are *certain Guiding Principles that may not be suitable for ICANN* and others that might be applicable, depending on the circumstances. However, it is beyond the scope of this document to provide a detailed analysis of the Guiding Principles and their application, or not, in particular situations. (emphasis added)

​The Considerations document even expressly recognizes the likelihood of conflicts between Ruggie and the ICANN Bylaws:​

In any case, a conflict between any Guiding Principle and an ICANN Bylaw provision or Article of Incorporation must be resolved in favor of the Bylaw or Article. The use of the Guiding Principles as potential guidance has to be carefully considered by each SO and AC as well as ICANN the organization.

For purposes of clarity (which is the purpose of the FoI), any reference to the UNGP in the Bylaws should be appropriately qualified to align it with the Considerations document and to avoid conflict with the HR Bylaw itself. The follow caveat would provide the necessary aid to using Ruggie to interpret the Bylaw:

*/Any consideration of the UNGP in interpreting the Bylaw must be expressly limited by //(a) the fact that there is "no consensus" on the UNGP's "suitability for interpreting the Core Value", //(b) the Bylaw's limitation to "applicable law," (c) the Bylaw's injunction that it cannot be used to "obligate ICANN to enforce its human rights obligations or the other human rights obligations of other parties, against other parties, (d) guidance that only "certain aspects" of the UNGP "might be applicable" while others "may not be suitable for ICANN", (e) the recognition that there are conflicts between the UNGP and the Bylaw, and that "a conflict between any Guiding Principle and an ICANN Bylaw provision or Article of Incorporation must be resolved in favor of the Bylaw or Article," and (f) the understanding that the UNGP only applies to ICANN, if at all, in the context of ICANN the organization's activities as a "business" and not in its sui generis mission "to ensure the stable and secure operation of the Internet's unique identifier systems" and to adopt policies, enter into contracts and allocate DNS resources in connection with that mission. /* (Quoted language from the ICANN Bylaws and the "Considerations" accompanying this Framework of Interpretation.)

This would avoid ambiguity and conflict between the Bylaw, the FoI, the document being suggested to interpret the Bylaw (i.e., the UNGP), and the underlying considerations taken into account in creating the FoI.

It occurs to me that if we adopted the proposed language in the FOI, we would need to insert language in the "Considerations" to reflect the proposal's limiting language, e.g.:

*/The UNGP are relevant for business organizations, and should be applied in that context. To the extent that ICANN the Organization is a business, it should consider, as a business, certain aspects of the UNGP as a useful guide when applying the Human Rights Core Value./* */ /*

/​/This raises other concerns. The Human Rights Bylaw is intended as a "floor" and not a "ceiling." ICANN the Organization and the Community can always choose to do more than the Bylaw dictates (within ICANN's remit, of course). The more we use language of limitation, the more we leave the impression that ICANN (the Organization, the Community and the "ecosystem") cannot voluntarily go beyond the strictures of the Bylaw. That would be counterproductive.

The HR subgroup in WS2 was tasked with creating the FoI and taking certain "considerations" into account. It was not within our remit to create a roadmap for the voluntary adoption of Human Rights principles, whether culled from Ruggie or otherwise. I understand that some might want to use the power of the Bylaw to force voluntary compliance (that's an oxymoron....), or to turn voluntary compliance into Bylaws-mandated compliance. I don't support that. But neither do I want this effort to limit or appear to limit, in any way, the ability of ICANN (however defined) and its various structures to debate, consider and adopt, in ways that they find best, methods to respect Human Rights.

Greg

On Tue, Oct 3, 2017 at 7:47 AM, Matthew Shears <matthew@intpolicy.com <mailto:matthew@intpolicy.com>> wrote:

As Anne, I would like to know both the procedure and justification for "new language being proposed at the plenary level with no prior consideration of that language at the subgroup"?

I also do not understand why we are characterizing the positions as "Zero Ruggie" or " All Ruggie". As Anne notes, "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. ... In the ICANN environment, following all Ruggie principles creates too broad a sweep by far." These points were made in the sub-group discussions and on the lists on numerous occasions. And the work of the sub-group is not Zero Ruggie - this is a mis-characterization.

I also do not believe that it is appropriate to rewrite the “Considerations” document is at the plenary level. The considerations document as it stands - and agreed by the sub group - should provide all that is needed in terms of references to Ruggie.

Matthew

On 02/10/2017 20:54, Aikman-Scalese, Anne wrote:

...

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 <tel:%28520%29%20629-4428> office

520.879.4725 <tel:%28520%29%20879-4725> fax

AAikman@lrrc.com <mailto:AAikman@lrrc.com>

_____________________________

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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Agree with Mathew. It was a lengthy discussion from the very beginning and we were all ok with this approach. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

Le 3 oct. 2017 à 12:47, Matthew Shears <matthew@intpolicy.com> a écrit :

As Anne, I would like to know both the procedure and justification for "new language being proposed at the plenary level with no prior consideration of that language at the subgroup"?

I also do not understand why we are characterizing the positions as "Zero Ruggie" or " All Ruggie". As Anne notes, "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. ... In the ICANN environment, following all Ruggie principles creates too broad a sweep by far." These points were made in the sub-group discussions and on the lists on numerous occasions. And the work of the sub-group is not Zero Ruggie - this is a mis-characterization.

I also do not believe that it is appropriate to rewrite the “Considerations” document is at the plenary level. The considerations document as it stands - and agreed by the sub group - should provide all that is needed in terms of references to Ruggie.

Matthew

On 02/10/2017 20:54, Aikman-Scalese, Anne wrote:

...

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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Right on target. On 04/10/17 15:27, Mueller, Milton L wrote:

Anne

Weighing in here, I see some confusion:

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.

The key characteristic of ICANN is _/not/_ that it is a nonprofit and _/not/_ that it is a so-called “bottom up multistakeholder” organization. The ICANN feature of relevance to Human Rights is that ICANN makes global public policy regarding domain name registration and use. In this sense, it certainly is a “quasi-governmental” entity, indeed it was created to serve as a globalized substitute for territorial governments because of the Internet’s inherent need for globally coordinated policy for the DNS to avoid fragmentation. We say quasi-governmental because it has exclusive control of an essential facility and thus its policies, like a state’s, are effectively binding on most suppliers and (through them) users of the DNS.

If ICANN makes public policy, then it follows that ICANN’s _/policies/_ must respect (or not violate) recognized human rights, especially ones like freedom of expression and privacy that are related to Internet use. There is no inconsistency in the requirement that ICANN’s substantive policies respect human rights and ICANN’s limited mission; indeed, they are complementary. ICANN can only make policies in areas authorized by its mission and core values. HR concerns are an additional constraint on what ICANN can do when making policies; e.g. it cannot violate free expression or privacy rights. It is not an authorization to do additional things.

Those of us who have objected to the use of the Ruggie principles have done so because Ruggie misses the target. We want ICANN’s _/policies/_ to respect Human Rights, we do not think ICANN’s internal operations will violate human rights. That is, we don’t think ICANN has a propensity to use slave labor etc. The problem with Ruggie is that it focuses on  commercial operations of businesses, not on policy makers. The Ruggie principles can serve as a massive diversion from the substantive policy issues that ICANN deals with, and if applied inappropriately it can also push ICANN the corporation to do things outside its mission.

The fact that key players in this discussion still don’t understand – or resist admitting – that ICANN is indeed a quasi-governmental policy maker causes me some concern. The whole HR discussion makes no sense unless you understand that.

Dr. Milton Mueller

Professor, School of Public Policy

Georgia Institute of Technology

IGP_logo_gold block_email sig <http://www.internetgovernance.org/>

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Of course, this cynic might just also say "don't apply things inappropriately". On 04/10/17 16:48, Stephen Deerhake wrote:

+1 Milton.  Spot on.

*From: *<accountability-cross-community-bounces@icann.org> on behalf of "Mueller, Milton L" <milton@gatech.edu> *Date: *Wednesday, October 4, 2017 at 10:29 *To: *"Aikman-Scalese, Anne" <AAikman@lrrc.com>, "ws2-hr@icann.org" <ws2-hr@icann.org> *Cc: *"accountability-cross-community@icann.org" <accountability-cross-community@icann.org> *Subject: *Re: [CCWG-ACCT] [Ws2-hr] clarification re Human Right Subgroup work and FOI - Human Rights with "Considerations"

Anne

Weighing in here, I see some confusion:

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.

The key characteristic of ICANN is _/not/_ that it is a nonprofit and _/not/_ that it is a so-called “bottom up multistakeholder” organization. The ICANN feature of relevance to Human Rights is that ICANN makes global public policy regarding domain name registration and use. In this sense, it certainly is a “quasi-governmental” entity, indeed it was created to serve as a globalized substitute for territorial governments because of the Internet’s inherent need for globally coordinated policy for the DNS to avoid fragmentation. We say quasi-governmental because it has exclusive control of an essential facility and thus its policies, like a state’s, are effectively binding on most suppliers and (through them) users of the DNS.

If ICANN makes public policy, then it follows that ICANN’s _/policies/_ must respect (or not violate) recognized human rights, especially ones like freedom of expression and privacy that are related to Internet use. There is no inconsistency in the requirement that ICANN’s substantive policies respect human rights and ICANN’s limited mission; indeed, they are complementary. ICANN can only make policies in areas authorized by its mission and core values. HR concerns are an additional constraint on what ICANN can do when making policies; e.g. it cannot violate free expression or privacy rights. It is not an authorization to do additional things.

Those of us who have objected to the use of the Ruggie principles have done so because Ruggie misses the target. We want ICANN’s _/policies/_ to respect Human Rights, we do not think ICANN’s internal operations will violate human rights. That is, we don’t think ICANN has a propensity to use slave labor etc. The problem with Ruggie is that it focuses on  commercial operations of businesses, not on policy makers. The Ruggie principles can serve as a massive diversion from the substantive policy issues that ICANN deals with, and if applied inappropriately it can also push ICANN the corporation to do things outside its mission.

The fact that key players in this discussion still don’t understand – or resist admitting – that ICANN is indeed a quasi-governmental policy maker causes me some concern. The whole HR discussion makes no sense unless you understand that.

Dr. Milton Mueller

Professor, School of Public Policy

Georgia Institute of Technology

GP_logo_gold block_email sig <http://www.internetgovernance.org/>

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