Board remarks on Human Rights, IRP and Community IRP
Dear CCWG, 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. 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 ICANN¹s 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 Board¹s 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 Board¹s 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 ICANN¹s 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 community¹s 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 ³applicable law² 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 ³any entity having a relationship with ICANN ³ 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 ICANN¹s Mission. Without a framework, challenges could be raised around issues that are not agreed to be within ICANN¹s 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 ICANN¹s 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 ICANN¹s accountability. The Board urges that the full scope of defined work on human rights should include consideration of impacts across all of ICANN¹s activities. As noted by ICANN¹s 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 ICANN¹s 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 ICANN¹s 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: 1. The IRP should not be used to determine what documents are to be released as part of ICANN¹s Documentary Information Disclosure Policy (DIDP). If a DIDP response is in violation of ICANN¹s 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. 1. 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 ICANN¹s obligations with PTI¹s obligations. 1. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP. 1. 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). 1. The Board discourages the use of exemptions to the already limited world of ³loser pays² 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 Board¹s 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.
Dear All, Once again ,I appreciate the Board's comments on human Rights and its relatiion with IRP. For ease of reading I would comment on each paragraph as follows: *Board’s Views on Human Rights * *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* * Comments* I too appreciate the Board's works and close collaboration *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. 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. * Comments Tks *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**.* Comments This is Under review by CCWG *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:* * Comments * *It is a valid point and thus I support that position * *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:* Comments Yes it could expand ICANN’s human rights obligations, but not greatly - *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.* - Comments - Concourred - *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.* - *Comments* - *Law in force in the country that judgement is made * - *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.* - - - Comments - Concourred - - *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.* - Comments - Concourred *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.* Comments - Almost concourred 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. Comment - I Fully Agree to that analysis *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 *1. **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.* 1. *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.* 1. *The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP. * 1. *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). * 1. *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.* Comment This is being discussed *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**.* This is being discussed 2. Regards 3. Kavouss 2016-01-19 3:15 GMT+01:00 Theresa Swinehart <theresa.swinehart@icann.org>:
Dear CCWG,
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. 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:
1. 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.
1. 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.
1. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP.
1. 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).
1. 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.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Board, I fully understand that individual board members do not speak on behalf of the full board in the CCWG but on their own behalf, but it greatly surprises me that when we reach agreement or even consensus in the CCWG respectively WP4 with individual board members, that the board comments or emails simply disregard every conversation that has been had. This way one can simply not have a serious conversation or negotiation. We had good discussions on this list with Markus and Bruce, but the email of the board repeats the same arguments as given in the comments, so it seems that all discussion with the board is pointless and the board simply wants to push its points, but even worse, is not willing to have a discussion based on facts, laws and examples. This is greatly worrying me. On the list there was a range of discussions concerning option A and option C, I think we should continue down the road of informed and constructive discussion instead of repeating the same arguments (which have already been addressed in bylaw language or by lawyers) which are not helping us reach consensus, quite the opposite. Constructively yours, Niels On 01/19/2016 03:15 AM, Theresa Swinehart wrote: <<snipp>
/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:
1. 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.
2. 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.
3. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP.
4. 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).
5. 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.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Dear all, I agree with Niels that it is surprising and frustrating that in the middle of what might be considered as a constructive dialogue the board repeats the same arguments against the inclusion of human rights into the bylaw language as it proposed in the Third Draft Report. I am confident that all the board concerns, one by one can be addressed by the adoption of the option C (as also recognized by Bruce), because the bylaw language will not be operational until the framework of interpretation is adopted, so there can be no IRP or no court litigation. I do not understand why the board is disregarding all the work and discussions that took place at CCWG and WP4 and insisting that we have to go back to the square one in WS2 and discuss even the need for the bylaw there. Is the conclusion of the WP4 and CCWG that we need a bylaw is not enough for the board? Why are community’s conclusions and discussions being disregarded? Another concern of mine is the way forward suggested by the board – both in the comments to the draft proposal and in the recent email. So the board is suggesting to do some work like hiring an expert and report to the community in Marrakech? I am happy that the board wants to get engaged into the HR discussions and efforts, but I think this shall be a parallel process. If this efforts are suggested as an alternative way, I would consider them as non-inclusive (the board is taking over the process and reporting to the community) and top-down. Inclusion of human rights shall be a community exercise. As a step one, the community has come to a decision to include the human rights language into the bylaw. If we accept the option C, all the concerns of the board are addressed, because bylaw language will be dormant till the framework is developed. Sending the whole process back to WS2 is disregarding all the work has been done and a lack of respect to the ability of CCWG to come to conclusions. I hope the email of the board doesn’t mean the end of the dialogue. I again would like to bring everyone’s attention to the option C, which is a great compromise between our initial ideas and board’s suggestions, and which addresses all the board’s concerns. As a side note: the language referring to the “applicable laws” was inserted by lawyers on a later stage. As a lawyer myself, I interpreted this language as a clause that if there is applicable law (like for example engagement in slavery is a criminal offence), ICANN can’t get away with being responsible for this even if we have a “no responsibility clause” in the bylaw. I believe that if there is an applicable law, it will be applicable with or without the bylaw. Just my opinion. All in all, I don’t mind if this “applicable law” clause will be excluded from the bylaw language if it causes such a great discomfort. Best regards Tatiana On 19/01/16 10:14, Niels ten Oever wrote:
Dear Board,
I fully understand that individual board members do not speak on behalf of the full board in the CCWG but on their own behalf, but it greatly surprises me that when we reach agreement or even consensus in the CCWG respectively WP4 with individual board members, that the board comments or emails simply disregard every conversation that has been had. This way one can simply not have a serious conversation or negotiation.
We had good discussions on this list with Markus and Bruce, but the email of the board repeats the same arguments as given in the comments, so it seems that all discussion with the board is pointless and the board simply wants to push its points, but even worse, is not willing to have a discussion based on facts, laws and examples. This is greatly worrying me.
On the list there was a range of discussions concerning option A and option C, I think we should continue down the road of informed and constructive discussion instead of repeating the same arguments (which have already been addressed in bylaw language or by lawyers) which are not helping us reach consensus, quite the opposite.
Constructively yours,
Niels
On 01/19/2016 03:15 AM, Theresa Swinehart wrote: <<snipp>
/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:
1. 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.
2. 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.
3. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP.
4. 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).
5. 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.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All, I fully understand the concerns raised by some of our CCWG colleagues in regard with the Board's recent comments on three Recs. However, at WP4, I remember that, Board's members expressed more or less the same concerned but those concerns were not taken into account when the WP4 prepared its output. That output was discussed at CCWG and there was no reaction from the CCWG members on the initial Board's comments. The Board has then raised their points when commenting on CCWG 3rd proposal and now reiterating more or less the same concerns I am of the opinion that we need to carefully examine these comments, if some or all are convening we should take them into account. Those areas that we are not convinced, we need to enter into discussion with the Board's representative with a view to find an acceptable solution. Should we ignore their comments, they would submit these comments to NTIA together with CCWG Final proposal Another important point is that the Board is the entity that a) will have to implement these provisions. Should they identify any difficulties to implement them ,we need to examine their difficulties to minimize them that the provisions in question could be implementable. The other issue is should some of our output create legal difficulties for the Board such as involve them in obligations vis a vis other entities with which they contract certain action and the scope of implementation of those actions by the contracting parties is beyond the control of the Board, then what we expect from the Board to do. CCWG draft many provision purely on theoretical ground and may not have examined the intended or unintended consequences of these provisions thus the Board is legitimately allowed to comment on these provisions from practical implementation view points Best Regards Kavouss 2016-01-19 10:14 GMT+01:00 Niels ten Oever <lists@nielstenoever.net>:
Dear Board,
I fully understand that individual board members do not speak on behalf of the full board in the CCWG but on their own behalf, but it greatly surprises me that when we reach agreement or even consensus in the CCWG respectively WP4 with individual board members, that the board comments or emails simply disregard every conversation that has been had. This way one can simply not have a serious conversation or negotiation.
We had good discussions on this list with Markus and Bruce, but the email of the board repeats the same arguments as given in the comments, so it seems that all discussion with the board is pointless and the board simply wants to push its points, but even worse, is not willing to have a discussion based on facts, laws and examples. This is greatly worrying me.
On the list there was a range of discussions concerning option A and option C, I think we should continue down the road of informed and constructive discussion instead of repeating the same arguments (which have already been addressed in bylaw language or by lawyers) which are not helping us reach consensus, quite the opposite.
Constructively yours,
Niels
On 01/19/2016 03:15 AM, Theresa Swinehart wrote: <<snipp>
/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:
1. 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.
2. 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.
3. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP.
4. 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).
5. 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.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi Kavouss, Could you please point our which concerns you mean? I think all concerns have been discussed and addressed at length. But maybe I have missed something. Could you point me to the thread you are talking about? Thanks in advance, Niels On 01/19/2016 10:40 AM, Kavouss Arasteh wrote:
Dear All,
I fully understand the concerns raised by some of our CCWG colleagues in regard with the Board's recent comments on three Recs. However, at WP4, I remember that, Board's members expressed more or less the same concerned but those concerns were not taken into account when the WP4 prepared its output.
That output was discussed at CCWG and there was no reaction from the CCWG members on the initial Board's comments.
The Board has then raised their points when commenting on CCWG 3rd proposal and now reiterating more or less the same concerns
I am of the opinion that we need to carefully examine these comments, if some or all are convening we should take them into account. Those areas that we are not convinced, we need to enter into discussion with the Board's representative with a view to find an acceptable solution.
Should we ignore their comments, they would submit these comments to NTIA together with CCWG Final proposal
Another important point is that the Board is the entity that a) will have to implement these provisions. Should they identify any difficulties to implement them ,we need to examine their difficulties to minimize them that the provisions in question could be implementable.
The other issue is should some of our output create legal difficulties for the Board such as involve them in obligations vis a vis other entities with which they contract certain action and the scope of implementation of those actions by the contracting parties is beyond the control of the Board, then what we expect from the Board to do.
CCWG draft many provision purely on theoretical ground and may not have examined the intended or unintended consequences of these provisions thus the Board is legitimately allowed to comment on these provisions from practical implementation view points
Best Regards
Kavouss
2016-01-19 10:14 GMT+01:00 Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>>:
Dear Board,
I fully understand that individual board members do not speak on behalf of the full board in the CCWG but on their own behalf, but it greatly surprises me that when we reach agreement or even consensus in the CCWG respectively WP4 with individual board members, that the board comments or emails simply disregard every conversation that has been had. This way one can simply not have a serious conversation or negotiation.
We had good discussions on this list with Markus and Bruce, but the email of the board repeats the same arguments as given in the comments, so it seems that all discussion with the board is pointless and the board simply wants to push its points, but even worse, is not willing to have a discussion based on facts, laws and examples. This is greatly worrying me.
On the list there was a range of discussions concerning option A and option C, I think we should continue down the road of informed and constructive discussion instead of repeating the same arguments (which have already been addressed in bylaw language or by lawyers) which are not helping us reach consensus, quite the opposite.
Constructively yours,
Niels
On 01/19/2016 03:15 AM, Theresa Swinehart wrote: <<snipp> > > /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: > > > > 1. 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. > > > > 2. 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. > > > > 3. The Board also supports the request from the IAB that the protocol > parameters are excluded from the IRP. > > > > 4. 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). > > > > 5. 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. > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
-- Niels ten Oever Head of Digital
Article 19 www.article19.org <http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Dear Niels Thank you very much for your valuable and valid points that you have raised. I borrowed the term" Concerns" from the Board's comments Please kindly look at those comments again .Whether you categorize them as concerns or not that is up to you. What I remember is these points ( concerns) were almost raised before in different mode of expression What I suggested was that we need to have a general agreement at CCWG. HR while is agreed by everybody that is one of the most important and fundamental issue to be addressed ,it is also to be recognized that the interpretation and implementation of that is also important and fundamental Regards Best Regards Kavouss 2016-01-19 10:50 GMT+01:00 Niels ten Oever <lists@nielstenoever.net>:
Hi Kavouss,
Could you please point our which concerns you mean? I think all concerns have been discussed and addressed at length. But maybe I have missed something. Could you point me to the thread you are talking about?
Thanks in advance,
Niels
On 01/19/2016 10:40 AM, Kavouss Arasteh wrote:
Dear All,
I fully understand the concerns raised by some of our CCWG colleagues in regard with the Board's recent comments on three Recs. However, at WP4, I remember that, Board's members expressed more or less the same concerned but those concerns were not taken into account when the WP4 prepared its output.
That output was discussed at CCWG and there was no reaction from the CCWG members on the initial Board's comments.
The Board has then raised their points when commenting on CCWG 3rd proposal and now reiterating more or less the same concerns
I am of the opinion that we need to carefully examine these comments, if some or all are convening we should take them into account. Those areas that we are not convinced, we need to enter into discussion with the Board's representative with a view to find an acceptable solution.
Should we ignore their comments, they would submit these comments to NTIA together with CCWG Final proposal
Another important point is that the Board is the entity that a) will have to implement these provisions. Should they identify any difficulties to implement them ,we need to examine their difficulties to minimize them that the provisions in question could be implementable.
The other issue is should some of our output create legal difficulties for the Board such as involve them in obligations vis a vis other entities with which they contract certain action and the scope of implementation of those actions by the contracting parties is beyond the control of the Board, then what we expect from the Board to do.
CCWG draft many provision purely on theoretical ground and may not have examined the intended or unintended consequences of these provisions thus the Board is legitimately allowed to comment on these provisions from practical implementation view points
Best Regards
Kavouss
2016-01-19 10:14 GMT+01:00 Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>>:
Dear Board,
I fully understand that individual board members do not speak on
behalf
of the full board in the CCWG but on their own behalf, but it greatly surprises me that when we reach agreement or even consensus in the
CCWG
respectively WP4 with individual board members, that the board
comments
or emails simply disregard every conversation that has been had. This way one can simply not have a serious conversation or negotiation.
We had good discussions on this list with Markus and Bruce, but the email of the board repeats the same arguments as given in the
comments,
so it seems that all discussion with the board is pointless and the board simply wants to push its points, but even worse, is not
willing to
have a discussion based on facts, laws and examples. This is greatly worrying me.
On the list there was a range of discussions concerning option A and option C, I think we should continue down the road of informed and constructive discussion instead of repeating the same arguments
(which
have already been addressed in bylaw language or by lawyers) which
are
not helping us reach consensus, quite the opposite.
Constructively yours,
Niels
On 01/19/2016 03:15 AM, Theresa Swinehart wrote: <<snipp> > > /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: > > > > 1. 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. > > > > 2. 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. > > > > 3. The Board also supports the request from the IAB that the
protocol
> parameters are excluded from the IRP. > > > > 4. 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). > > > > 5. 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. > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> >
https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
-- Niels ten Oever Head of Digital
Article 19 www.article19.org <http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Dear Kavouss, Thanks for this. I have read the board comments and we have dissected them and discussed them at length here on the list. You say in your previous mail that the board concerns were not taken into account. I have no evidence or experience of any such thing happening, quite the opposite. Could you please point to the period when any of the comments by the board (both individual members or board statements) were not extensively discussed? All the best, Niels On 01/19/2016 10:57 AM, Kavouss Arasteh wrote:
Dear Niels Thank you very much for your valuable and valid points that you have raised. I borrowed the term" Concerns" from the Board's comments Please kindly look at those comments again .Whether you categorize them as concerns or not that is up to you. What I remember is these points ( concerns) were almost raised before in different mode of expression What I suggested was that we need to have a general agreement at CCWG. HR while is agreed by everybody that is one of the most important and fundamental issue to be addressed ,it is also to be recognized that the interpretation and implementation of that is also important and fundamental Regards Best Regards Kavouss
2016-01-19 10:50 GMT+01:00 Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>>:
Hi Kavouss,
Could you please point our which concerns you mean? I think all concerns have been discussed and addressed at length. But maybe I have missed something. Could you point me to the thread you are talking about?
Thanks in advance,
Niels
On 01/19/2016 10:40 AM, Kavouss Arasteh wrote: > > > Dear All, > > I fully understand the concerns raised by some of our CCWG colleagues in > regard with the Board's recent comments on three Recs. However, at WP4, > I remember that, Board's members expressed more or less the same > concerned but those concerns were not taken into account when the WP4 > prepared its output. > > That output was discussed at CCWG and there was no reaction from the > CCWG members on the initial Board's comments. > > The Board has then raised their points when commenting on CCWG 3rd > proposal and now reiterating more or less the same concerns > > I am of the opinion that we need to carefully examine these comments, if > some or all are convening we should take them into account. Those areas > that we are not convinced, we need to enter into discussion with the > Board's representative with a view to find an acceptable solution. > > Should we ignore their comments, they would submit these comments to > NTIA together with CCWG Final proposal > > Another important point is that the Board is the entity that a) will > have to implement these provisions. Should they identify any > difficulties to implement them ,we need to examine their difficulties to > minimize them that the provisions in question could be implementable. > > > > The other issue is should some of our output create legal difficulties > for the Board such as involve them in obligations vis a vis other > entities with which they contract certain action and the scope of > implementation of those actions by the contracting parties is beyond > the control of the Board, then what we expect from the Board to do. > > CCWG draft many provision purely on theoretical ground and may not have > examined the intended or unintended consequences of these provisions > thus the Board is legitimately allowed to comment on these provisions > from practical implementation view points > > Best Regards > > Kavouss > > > 2016-01-19 10:14 GMT+01:00 Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net> > <mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>>>: > > Dear Board, > > I fully understand that individual board members do not speak on behalf > of the full board in the CCWG but on their own behalf, but it greatly > surprises me that when we reach agreement or even consensus in the CCWG > respectively WP4 with individual board members, that the board comments > or emails simply disregard every conversation that has been had. This > way one can simply not have a serious conversation or negotiation. > > We had good discussions on this list with Markus and Bruce, but the > email of the board repeats the same arguments as given in the comments, > so it seems that all discussion with the board is pointless and the > board simply wants to push its points, but even worse, is not willing to > have a discussion based on facts, laws and examples. This is greatly > worrying me. > > On the list there was a range of discussions concerning option A and > option C, I think we should continue down the road of informed and > constructive discussion instead of repeating the same arguments (which > have already been addressed in bylaw language or by lawyers) which are > not helping us reach consensus, quite the opposite. > > Constructively yours, > > Niels > > On 01/19/2016 03:15 AM, Theresa Swinehart wrote: > <<snipp> > > > > /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: > > > > > > > > 1. 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. > > > > > > > > 2. 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. > > > > > > > > 3. The Board also supports the request from the IAB that the protocol > > parameters are excluded from the IRP. > > > > > > > > 4. 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). > > > > > > > > 5. 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. > > > > > > > > _______________________________________________ > > Accountability-Cross-Community mailing list > > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > > https://mm.icann.org/mailman/listinfo/accountability-cross-community > > > > -- > Niels ten Oever > Head of Digital > > Article 19 > www.article19.org <http://www.article19.org> <http://www.article19.org> > > PGP fingerprint 8D9F C567 BEE4 A431 56C4 > 678B 08B5 A0F2 636D 68E9 > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > <mailto:Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org>> > https://mm.icann.org/mailman/listinfo/accountability-cross-community > >
-- Niels ten Oever Head of Digital
Article 19 www.article19.org <http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Dear Kavouss, just briefly: I think we *are* willing to take into account the board's "concerns". That's what option C is actually meant for. Adopting a dormant bylaw wasn't out initial idea, but we are trying our best to find a compromise and to address board's concerns. All of the board's comments are addressed if this option is adopted. Or is "addressing the concerns" means just agreeing with the comments, disregarding the work we've done and moving everything to the WS2? I think we all have to be willing to find a compromise, as it was done in other areas. Concerning the past discussions: the board members were taking part in the WP4. The concerns were different, as far as I remember. Best regards Tatiana On 19/01/16 10:40, Kavouss Arasteh wrote:
Dear All,
I fully understand the concerns raised by some of our CCWG colleagues in regard with the Board's recent comments on three Recs. However, at WP4, I remember that, Board's members expressed more or less the same concerned but those concerns were not taken into account when the WP4 prepared its output.
That output was discussed at CCWG and there was no reaction from the CCWG members on the initial Board's comments.
The Board has then raised their points when commenting on CCWG 3rd proposal and now reiterating more or less the same concerns
I am of the opinion that we need to carefully examine these comments, if some or all are convening we should take them into account. Those areas that we are not convinced, we need to enter into discussion with the Board's representative with a view to find an acceptable solution.
Should we ignore their comments, they would submit these comments to NTIA together with CCWG Final proposal
Another important point is that the Board is the entity that a) will have to implement these provisions. Should they identify any difficulties to implement them ,we need to examine their difficulties to minimize them that the provisions in question could be implementable.
The other issue is should some of our output create legal difficulties for the Board such as involve them in obligations vis a vis other entities with which they contract certain action and the scope of implementation of those actions by the contracting parties is beyond the control of the Board, then what we expect from the Board to do.
CCWG draft many provision purely on theoretical ground and may not have examined the intended or unintended consequences of these provisions thus the Board is legitimately allowed to comment on these provisions from practical implementation view points
Best Regards
Kavouss
2016-01-19 10:14 GMT+01:00 Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>>:
Dear Board,
I fully understand that individual board members do not speak on behalf of the full board in the CCWG but on their own behalf, but it greatly surprises me that when we reach agreement or even consensus in the CCWG respectively WP4 with individual board members, that the board comments or emails simply disregard every conversation that has been had. This way one can simply not have a serious conversation or negotiation.
We had good discussions on this list with Markus and Bruce, but the email of the board repeats the same arguments as given in the comments, so it seems that all discussion with the board is pointless and the board simply wants to push its points, but even worse, is not willing to have a discussion based on facts, laws and examples. This is greatly worrying me.
On the list there was a range of discussions concerning option A and option C, I think we should continue down the road of informed and constructive discussion instead of repeating the same arguments (which have already been addressed in bylaw language or by lawyers) which are not helping us reach consensus, quite the opposite.
Constructively yours,
Niels
On 01/19/2016 03:15 AM, Theresa Swinehart wrote: <<snipp> > > /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: > > > > 1. 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. > > > > 2. 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. > > > > 3. The Board also supports the request from the IAB that the protocol > parameters are excluded from the IRP. > > > > 4. 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). > > > > 5. 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. > > > > _______________________________________________ > Accountability-Cross-Community mailing list > Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> > https://mm.icann.org/mailman/listinfo/accountability-cross-community >
-- Niels ten Oever Head of Digital
Article 19 www.article19.org <http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hi Theresa, Bruce, Markus On 19/01/2016 02:15, Theresa Swinehart wrote:
Dear CCWG,
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:
1. 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.
2. 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.
3. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP.
4. 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).
5. 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.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Matthew Shears Director - Global Internet Policy and Human Rights Center for Democracy & Technology mshears@cdt.org + 44 771 247 2987 --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus
Dear Niel, Thanks again for your jind and quick reply. There is a difference between " extensively Discussed" and " were taken into account". If the Board's views7 concerns were extensively discussed and TAKEN INTO ACCOUNT, for for purpose the Board reiterated their comments ? Perhaps you may raise your question at the same time to Bruce Regards Kavouss 2016-01-19 13:05 GMT+01:00 Matthew Shears <mshears@cdt.org>:
Hi Theresa, Bruce, Markus
On 19/01/2016 02:15, Theresa Swinehart wrote:
Dear CCWG,
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:
1. 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.
1. 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.
1. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP.
1. 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).
1. 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.
_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community
--
Matthew Shears Director - Global Internet Policy and Human Rights Center for Democracy & Technology mshears@cdt.org+ 44 771 247 2987
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Dear Theresa/Bruce/Board/all, I note that this comment from board does not seem to address the question asked by one of the Co-Chairs (Leon), it will be good to know specifically if option C meets/addresses the concerns of the board and why not if it doesn't. Literately looking at option C, and apart from the fact that I don't know the legal implication of a dormant/broken bylaw text (which would have been a bug in the technical world) i think it does address board's concern (some of which i share and raised within WP4 as well). « option c » is the following : “Adopt adjusted bylaw language as part of WS1 to clarify that it can only be enforced or used in an IRP once the FoI is approved (Such as : “This articles becomes effective 30 days after approval of the FoI…”).” Regards On Tue, Jan 19, 2016 at 3:15 AM, Theresa Swinehart < theresa.swinehart@icann.org> wrote:
Dear CCWG,
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. 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:
1. 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.
1. 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.
1. The Board also supports the request from the IAB that the protocol parameters are excluded from the IRP.
1. 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).
1. 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.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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participants (6)
-
Dr. Tatiana Tropina -
Kavouss Arasteh -
Matthew Shears -
Niels ten Oever -
Seun Ojedeji -
Theresa Swinehart