All, I have silently, but closely, followed the deliberations on how a recognition of Human Rights should be incorporated in to ICANN’s corporate structures and documents. However, now that we appear to be at a point of choosing between three clear-cut options, I feel the need to comment and raise a few questions. I am taking a step back in the discussions and acknowledge that this perspective may not be popular. To set the scene: auDA has made two submissions to previous Public Comment periods where we unequivocally supported the concept of recognising Human Rights-related principles within ICANN. However, we were equally clear in expressing our concerns that a hurried or partial implementation would be problematic. These comments were drawn from my previous governmental experience, observing both individual governments and inter-governmental organisations grappling with the complex minutiae of how HR statements should be crafted. I agree with Avri that the departure of the NTIA requires some form of “backstop” to ensure Human Rights obligations are met but do not agree that it necessarily requires short-term implementation in order to adequately display a corporate commitment. I believe that a carefully-executed FoI is essential. Wouldn’t a commitment to considered deliberation and implementation through WS2 be adequate? Further, what distinguishes the conversation of human rights from our recent discussion on consumer trust? Both are “new” issues, not previously incorporated in the Bylaws or envisioned in the AoC.

From my reading, when talking about consumer trust, we have all-but agreed that bylaw changes without adequate deliberation are a bad idea. Hence it appears likely to be pushed to WS2, where the FoI will be developed. Why should this not be so for human rights-related amendments?

Overall, I am compelled toward the current “Alternative B”. But this is not for fear of legal liability / action. Rather: 1) I value the importance of making sure a challenging issue is resolved properly and thoroughly; and 2) I believe the WG should apply the same approach as it has done to similarly complex topics. I welcome your slings and arrows. Regards, Paul Paul Szyndler | General Manager, International and Government Affairs .au Domain Administration Limited T: +61 2 6292 5034 | F: +61 3 8341 4112 | M: +61 402 250 389 E: <mailto:paul.szyndler@auda.org.au> paul.szyndler@auda.org.au | W: www.auda.org.au <http://www.auda.org.au/> Twitter: <http://twitter.com/auda> @auda | Blog: www.auda.org.au/blog/ <http://www.auda.org.au/blog/> auDA – Australia’s Domain Name Administrator Important Notice This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, 18 January 2016 10:36 AM To: Dr Eberhard W Lisse <epilisse@gmail.com> Cc: Lisse Eberhard <directors@omadhina.net>; CCWG Accountability <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Recommendation 6 - Human Rights - 1st reading conclusions The Third Draft Proposal is actually ambiguous on the issue of implementing the Human Rights Bylaw, and the Proposal is not accurately represented by Alternative A. The Third Draft Proposal includes a transitional Bylaw, which states ""Bylaw xx will be implemented in accordance with the framework of interpretation to be developed as part of “Work Stream 2”." There is no further discussion of this language in the Proposal or Annex. The practical effect of this language is that the Human Rights bylaw cannot be implemented until the framework of interpretation is developed in WS2. The bylaw cannot be implemented any earlier than that, because it would then be impossible to implement the bylaw "in accordance with the framework of interpretation." As such, Alternative C is actually closer to the intent of the Third Draft than Alternative A. Alternative A is essentially incomplete, because it does not take the transitional bylaw into account. Greg On Sun, Jan 17, 2016 at 4:16 PM, Dr Eberhard W Lisse <epilisse@gmail.com <mailto:epilisse@gmail.com> > wrote: "Our" agreement? Who is "we"? Never mind that ALAC can have their mind changed for them any time. el -- Sent from Dr Lisse's iPad mini 4 On 17 Jan 2016, at 22:55, Tijani BEN JEMAA <tijani.benjemaa@benjemaa.com <mailto:tijani.benjemaa@benjemaa.com> > wrote: Avri, You know that I’m not against including ICANN human rights commitment into its bylaw assuming that it will be limited to the ICANN mission. I don’t understand that we want to include such commitments in the bylaws before we define the interpretation that will insure that they will only be applied according to the limited ICANN mission. Our agreement was to have a high level mention about those commitments in the CCWG proposal for Work Stream 1, and address the whole issue in Work Stream 2 to be included in the bylaws (commitments + interpretation). ----------------------------------------------------------------------------- Tijani BEN JEMAA Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (FMAI) Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114> +216 52 385 114 <tel:%2B216%2052%20385%20114> ----------------------------------------------------------------------------- Le 17 janv. 2016 à 18:58, Avri Doria <avri@acm.org <mailto:avri@acm.org> > a écrit : Hi, There would no legal difference in respect of the laws they need to obey. There will be a difference in the set of considerations that could be brought into consideration at the time of IANA contract renewal. The contract renewal is a checkpoint when NTIA can insure that ICANN is meeting all of its obligations including the various freedoms guaranteed by the government's HR obligations, not just the legal ones. rember the consultations that went on last time. And remmeber that ICANN had to fix its application in order to gain approval. With transition we lose this checkpoint and this loss needs something to take its place. In regard to HR issues, corporate responsibility is the best way to maintain that commitment. A simple commitment to respect human rights is the first step toward ICANN accepting its corporate responsibilities on this and other issues. Choice A is the closest we were able to get to making a simple first baby step toward ICANN accepting corporate responsibilities. avri On 17-Jan-16 12:05, Tijani BEN JEMAA wrote: The CCWG-Accountability sought legal advice on whether, upon the termination of the IANA Functions Contract between ICANN and the NTIA, ICANN’s specific Human Rights obligations could be called into question. It was found that, upon termination of the Contract, there would be no significant impact on ICANN’s Human Rights obligations. ----------------------------------------------------------------------------- *Tijani BEN JEMAA* Directeur Exécutif Fédération Méditerranéenne des associations d'Internet (*FMAI*) Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114> +216 52 385 114 <tel:%2B216%2052%20385%20114> ----------------------------------------------------------------------------- Le 17 janv. 2016 à 00:14, Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org>> a écrit : Hi, I had understood that much of the opposition expressed by those supporting B had to do with the fear of legal action. Since that fear seems not to be fact based, I was thinking some of that opposition has been answered. There is also the fact that with the departure of NTIA we have no backstop for the human rights obligations of the open internet without declaring a corporate commitment to human rights. This is not one of those nice to have Accountability changes made while there is a chance. This is a direct necessity based on losing the governmental backstop, given their obligation for human rights (whatever we think of their implementation of their governmental responsibilities). avri On 16-Jan-16 15:59, Tijani BEN JEMAA wrote: Some facts: * it wasn’t only the board who expressed concerns: some other comments did * on the call, there were different views expressed: some were for option A, others for option B and most for option C * Option C is a compromise between A and B Other facts: * the issue of Human rights was raised at the beginning of our works, and the position of the CCWG members was « since ICANN is about names and numbers, and has nothing to do with the content, no need to address this issue ». * It was raised again I think in Paris meeting, and the decision was to address it in work stream 2. and under the insistence of some, the CCWG decided to have a very high level mention on the issue in the proposal of Work Stream 1. ----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114> +216 52 385 114 <tel:%2B216%2052%20385%20114> ----------------------------------------------------------------------------- Le 16 janv. 2016 à 20:04, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org> <mailto:Brett.Schaefer@heritage.org> <mailto:Brett.Schaefer@heritage.org>> a écrit : Agree with this. In addition to the Board's comments being the focus for the rec discussions (at least it appears that way to me) it seems like unless a comment is raised during the Adobe it is considered resolved. Not all commenters participate in the Adobe chats, but that should not mean their comments should be dismissed or downplayed. __________ ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 <tel:202-608-6097> heritage.org <http://heritage.org/> <http://heritage.org/> <http://heritage.org/><http://heritage.org/> On Jan 16, 2016, at 3:11 AM, Avri Doria <avri@acm.org <mailto:avri@acm.org> <mailto:avri@acm.org> <mailto:avri@acm.org><mailto:avri@acm.org>> wrote: Hi, Was also noticing how little time we spend stepping through all the comments and answering them. Was wondering how we were coming to consensus before having done so. Don't wee need to have a response for all the comments on this draft? Given that we are using the process we are using, perhaps for each recommendation we are approaching consensus on we should check against the comments to see what we may be missing. Each recommendation as it nears completion could be taken by a few volunteers and checked against the comments on that recommendation. These small teams could take responsibility for drafting the responses as well. I do not dispute the importance of coming to agreement with the Board, but we must also deal with the rest of the comments in an proper manner. Especially on areas where finding an agreement point with the Board is challenging, the comments of the community can give us direction and an sasist. avri On 15-Jan-16 18:50, Robin Gross wrote: I agree and am concerned about the degree of automatic deference and preference for board desired outcomes over CCWG - Accountability participants and public comments in the organization of these discussions. For some reason, these discussions seem to each focus on the board objectives and comments and almost no attention to the comments of any other stakeholder. Let’s not forget many members of the public filed comments last month, expecting them to be discussed and incorporated. But it looks like the only concerns placed before us for consideration are the board comments/objectives. Let’s not forget the others! Best, Robin On Jan 15, 2016, at 9:03 AM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net> <mailto:lists@nielstenoever.net> <mailto:lists@nielstenoever.net><mailto:lists@nielstenoever.net>> wrote: Dear co-chairs (an all), I am quite surprised by your proposal to invite members and board to consider option C since WP4 and CCWG achieved consensus on option A, which was reinforced by the independent lawyers advice. I really don't think this work should be disregarded. The ICANN lawyers did not provide examples, case-law or other documents to outline any risk. So even though I am very willing to discuss, I see no reason to only consider option C and I am very surprised that you as co-chairs argue for that option even though consensus was reached earlier on option A. As I said in my previous email, it is not reasonable to consider option C before we agree that we won't proceed with the option A. All the best, Niels On 01/15/2016 05:26 PM, Alice Jansen wrote: _Sent on behalf of CoChairs _ _ _ Please find below the main conclusions of our deliberations during call #76. The updated document is attached. 1.Agreement to rely on target dates instead of hard deadlines, in line with general approach agreed for WS2 2. Discussed comments (including Icann Board, RrSG…) requesting that the inclusion of human rights language into the bylaws be delayed until the proposed framework of interpretation was completed or even only be considered in Work Stream 2. a.Independent lawyer input has been provided and concludes : While the addition of the proposed human rights bylaw provision should not increase the exposure of ICANN to legal liability, we recognize that special interest groups and individuals might seek to bring non-meritorious claims, but the risk of meritless claims is already a risk that ICANN faces. b. Board clarified that concern included risk that IRP would interpret the Bylaw language and create “case law policy” while the FoI is finalized. c. Consider Lawyer input suggestion as follows : i. “ /expressly limiting the jurisdiction of any internal dispute resolution systems within ICANN (such as the IRP) to preclude claims of human rights violations that are not grounded in a specific violation of an applicable law”./ 3. Members and Board are invited to consider whether option c) could be an acceptable way forward a. Confirm recommendation bylaw language as part of WS1, despite concerns expressed b. Defer bylaw language adoption to WS2, when FoI is finalized c. 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…”). Second reading is planned for Tuesday, 19 January. 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