Dear Colleagues, Please find below a contribution by Seth Johnson. Seth was invited during the Paris meeting to share his thoughts in writing. Best, Mathieu -------- Message transféré -------- Sujet : Re: Comments Requested on CCWG-Jurisdiction Document Date : Wed, 22 Jul 2015 02:07:49 -0400 De : Seth Johnson <seth.p.johnson@gmail.com> Pour : Mathieu Weill <mathieu.weill@afnic.fr> Copie à : acct-staff@icann.org <acct-staff@icann.org>, Cheryl Langdon-Orr <langdonorr@gmail.com>, Hillary Jett <hillary.jett@icann.org>, Steve DelBianco <sdelbianco@netchoice.org>, Ergys Ramaj <ergys.ramaj@icann.org>, Jordan Carter <jordan@internetnz.net.nz>, Burr, Becky <Becky.Burr@neustar.biz>, Thomas Rickert (thomas@rickert.net) <thomas@rickert.net> (pulling the last paragraph up to add one tiny but important edit)

Fundamental rights are not a public policy issue like others — they are built into the foundation of a government claimed by the people. They also have implications for enhanced cooperation. Without addressing the particulars of many public policy areas (outside the scope of traditional Internet stewardship) being envisaged to be addressed through enhanced cooperation, it still should be noted that the issue of rights, including the change in the nature of rights that happens when you move to the international arena (even while taking recourse to a private corporate form), needs to be treated not as a public policy in itself, as if it were merely a "statutory" matter, something established by law or treaty enacted by governments, but rather it needs to be recognized as a cross-cutting issue, as a matter that affects many public policy areas in the transition.

. . . that affects both public policy areas and technical aspects in the transition. (eom; full original text below) On Wed, Jul 22, 2015 at 1:34 AM, Seth Johnson <seth.p.johnson@gmail.com> wrote:

Hi Mathieu and folks:

([Verbose] Preface)

As requested, this note represents my comments regarding the document on the CCWG Accountability group’s scope with respect to the issue of jurisdiction (V4 attached without revisions). Please feel free to forward to the CCWG-Accountability list. They elaborate on my comments during the Paris meeting, where I indicated that this document mischaracterizes how the issue of jurisdiction relates to the group’s consideration of the issue of accountability.

My request was that the stress tests be revisited/expanded to address the effect of the transition to the international arena on fundamental rights. This issue also affects how well we can place faith in the transition plan as you've defined it so far, but I believe the transition timeline should focus on making sure this concern is recognized and addressed before the NTIA is removed, rather than on making a deadline without addressing this consideration.

Your approach has focused on constructing accountability mechanisms with the use of statutory powers available based on the corporate law in a particular jurisdiction (California in particular). An additional critical consideration is the implications of the transition in relation to fundamental rights. Fundamental rights are a key component of the stewardship context we've enjoyed thus far.

I stated that the issue is not about whether the group can change jurisdiction, as this document characterizes it, but about addressing the accountability implications given the change in the nature of jurisdiction implied in the basic problem of removing the role of the US government in the form of the NTIA. It isn’t just an issue of what jurisdiction to incorporate the organization within, but the context the stewardship of the Internet operates within in terms of how the role of government is limited. I noted that the proper characterization of that change is to recognize that fundamental rights will not operate in the international arena as limits on governments the way they do within a domestic constitutional context.

You've only just started addressing the problem of what happens in terms of rights when you remove the NTIA and the stewardship of the Internet is placed in the international arena. The system for checks and balances you have designed internal to the organization give recourse in relation to the organization, but the limit on governments that fundamental rights provide is also a critical accountability aspect of the stewardship context. The role of fundamental rights represents the unconscious aspect of the Internet's stewardship context that has been taken for granted and has not yet been recognized by the CCWG.

The UN language of "human rights" expressed in treaties enacted by governments does not provide for rights that serve as a “trump card” on government acts, subjecting them to strict scrutiny. Neither does declaring a principle of having the same rights online as offline — since the international arena doesn’t support fundamental rights offline any more than it might online. This is about confronting the effect on accountability of the change in the status of fundamental rights as a basic feature of the stewardship context we've enjoyed — not a matter of incorporating a statement on human rights norms in organizational documents.

This is also not about the capacity to sue ICANN, a private entity — it’s about recourse against governments through fundamental rights.

(Commentary)

The following three paragraphs are notes I prepared prior to commenting at the Paris meeting. I have added more below:

The nature of fundamental rights is very different at the national level from rights at the international level. We can describe this in terms of standards of review. In the US, fundamental rights undergo "strict scrutiny" in the courts because the judiciary branch will reference the founding constitutional act of the governing structure, wherein the people asserted their rights as of prior importance to the activities of the government they authorize. This means that the judiciary will cancel a duly-enacted law by elected representatives in the legislature if it impinges on these rights. For courts to uphold a law that affects fundamental liberties, the law must fulfill a compelling state interest and be narrowly tailored to address that concern as specifically as possible.

The international arena doesn't establish rights in the same way, but rather in the form of agreements among countries. The result is that the standard of review will be one of "balancing" (at best) and deliberations regarding rights in the international context would be about the intention of the governments involved in the enacting of international instruments. This means when international courts are called to consider issues of rights they will at best balance state interests against individual rights, so claimed national security interests will have much greater standing in the international arena as compared to rights than they do in the constitutional context. Such a judge is on much more tenuous and subjective grounds if she acts to overturn an international instrument, because governments are the ones laying the groundwork and there is no constitutional act whereby the people have set their rights as fundamental limits on the governments.

The issue of human rights is a perennial one in the international arena. The proper approach to this issue is not to suppose that treaties (and other “soft law” arrangements) established among states will provide the same type of rights that various peoples of the world rely on within their own countries to set fundamental limits on what their governments are authorized to do. The implications of this issue should be considered by means of new stress tests, since the effect of the transition on fundamental rights may warrant special measures to secure this key form of accountability.

(Further Points)

The closest the CCWG Jurisdiction document comes to the question of how the transition affects accountability by removing the national government role is in level 5) of the multiple tiers the document describes in ways the issue of jurisdiction relates to accountability. Level 5 mentions freedom of expression but is focused on whether jurisdictions will override others on a set of issues. Other than that, the document finds jurisdiction relevant to CCWG accountability only in terms of accountability mechanisms and limits implied in California corporate law, and frames the relevant question for the group in terms of how to enhance accountability based on laws applicable under that jurisdiction. It thus encourages a focus on statutory law rather than the constitutional foundation and overlooks the question of how Internet stewardship relies on accountability of the government to fundamental rights secured by a constitutional foundation, and how that form of accountability is affected by the change in the nature of jurisdiction implied in removing the government.

The question the group should be focused on is what happens to accountability given the change in the nature of the jurisdiction implied in the transition, not so much whether to change the jurisdiction as such. The group needs to acknowledge the effect on fundamental rights, and the accountability discussion should engage on what to do about that effect.

This point applies regardless of whether the Internet's stewardship relates to the US (whether in relation to a government agency like the NTIA or in terms of the location of jurisdiction). The same protection based on fundamental rights would apply even if the Internet had arisen in and been "hosted" within a free constitutional context in another country.

International or other than US and California is not a question that addresses the accountability issue substantively -- it just addresses whether we are getting independent of the US. The answer to that question given in this document (that the group is not charged with changing the jurisdiction, just with enhancing accountability within the organization) misses the real question of whether changing the nature of the jurisdiction (from NTIA involvement to NTIA not involved [+ private via CA/US corporation]) brings accountability questions. The other half of the answer ("Can Icann's accountability be enhanced depending on the laws applicable to its actions?") also appears to suggest the accountability issue is solely to be addressed in relation to laws -- apparently meaning statutes rather than the constitutional context.

Not all accountability issues can be handled by internal checks and balances in the corporate structure, and corporate law is not constitutional law. For that matter, there's a real danger in a solution to Internet stewardship in the international arena that focuses on that approach, as it may confuse fundamental rights held by natural persons in free countries with recourse to powers exercised within corporations. There’s no reason why powers under corporate statute should not be used to support strong checks and balances within a corporate entity, but that does nothing to address the checks on governments citizens enjoy regardless of how a private organization functions.

When you transition to a private structure and remove the role of a hosting free government, the implications include removing limits on government that have heretofore applied, leaving that private entity subject to intergovernmental forces which had been avoided while a free government limited by the fundamental rights of its own citizens was involved.

The presence of recourse to fundamental rights as limits on the government is what accounts for the fact that the US actively avoids acts that would overtly meddle with communications-related fundamental rights — except for a few cautious (and covert) exceptions where the US has attempted to use the international arena and privatization for activities that do affect fundamental rights — i.e., cautious machinations on copyright or trademark via WIPO, or the covert projects for mass surveillance, pre-Snowden, via international routing and telecom privatization.

Fundamental rights are not a public policy issue like others — they are built into the foundation of a government claimed by the people. They also have implications for enhanced cooperation. Without addressing the particulars of many public policy areas (outside the scope of traditional Internet stewardship) being envisaged to be addressed through enhanced cooperation, it still should be noted that the issue of rights, including the change in the nature of rights that happens when you move to the international arena (even while taking recourse to a private corporate form), needs to be treated not as a public policy in itself, as if it were merely a "statutory" matter, something established by law or treaty enacted by governments, but rather it needs to be recognized as a cross-cutting issue, as a matter that affects many public policy areas in the transition.

Seth