Questions and Answers on Human Rights Issues at ICANN

Susan Ariel Aaronson comments

1.  Why is human rights an issue at ICANN?  What does domain name registration have to do with human rights? 

Under international human rights laws and new Guiding Principles on Business and Human Rights, firms, even public benefit firms such as ICANN, also have human rights responsibilities. Every action firms take can affect their stakeholders; the effects are not static; they can change over time; and simultaneously these actions can both undermine and/or enhance specific human rights. The Universal Declaration on Human Rights delineates the 38 human rights that governments must respect, protect and remedy. Firms are responsible for respecting human rights. 

http://www.ohchr.org/Documents/Publications/HR.PUB.12.2_En.pdf

2.  What are the key human rights issues that have been identified at ICANN?

For a good overview, see Council of Europe http://www.coe.int/t/informationsociety/icann-and-human-rights.asp

• In order to operate in the public interest, ICANN has to comply with international human rights standards. Needs to human rights framework to make decisions.
• The notion of public interest is insufficiently clear to provide guidance in policy development processes; accountability requires measurable standards. Human rights could serve to delineate the notion of public interest.
• States need to be aware of their responsibility to protect the human rights of their citizens, also with regard to internet governance.
• Human rights and the right to freedom of expression in particular need to be fully taken into account when deciding on the approval or refusal of sensitive new gTLDs.
• The positive obligations of states require specific attention to vulnerable groups. It is desirable that the people-centeredness of ICANN’s policy development is further improved. A balance must be struck between economic interests and other objectives of common interest, such as pluralism, cultural and linguistic diversity. Auctions may be an efficient way of allocation from an economic point of view but not from a view of respecting plurality and diversity. ICANN must always ensure that the outcome is in the best public interest.
• Human rights and the right to private life in particular require a rebalancing exercise with regard to the processing and retention of data under the 2013 RAA as well as to public access to personal information in the WHOIS database.

ICANN also has responsibilities to respect human rights in “how” it makes decisions.

3.  Whose responsibility is it to resolve these issues legally and from a policy perspective, and why?

As noted above, states have principal responsibilities to protect, respect and remedy human rights; firms must respect. Hence states can hold firms to account.

They should also not delegate human rights responsibilities to firms (as in CSR).

https://edri.org/files/EDRI_CoE.pdf

4.  Were the obligations in terms of human rights encompassed in the original articles of commitment? I don’t know.

5.  What role should the GAC play in ensuring human rights at ICANN?

Help guide it towards a more responsible, responsive and accountable strategy.

6.  Jurisdiction is a big issue in terms of application of privacy law, freedom of expression, and prosecution of offences.  How would those in favour of a more sustained effort to integrate human rights into ICANN policy propose to navigate the jurisdictional issues?

The issue of jurisdiction is one all firms, especially internet firms, must reckon with.

7.  Is there a mechanism to apply data protection law in a harmonized fashion throughout the ecosystem touched by ICANN?

We need shared standards; perhaps building on OECD and APEC Principles…but right now these issues are being addressed in aspirational language in trade agreements and not fully fleshed out. The EU refuses to address privacy in TTIP; both the US and the EU cite other governments’ privacy rules as barriers to trade, so we do need to develop shared standards so national standards for privacy and the free flow of information (on which we all depend) can coexist.  For more information, see Aaronson, Can Trade Set Information Free,  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2189153

Here is my suggested strategy to ICANN:

I suggest a couple of things which would also allow ICANN to follow UN Guiding Principles for Business and Human Rights:  (see for ICT:  http://www.bsr.org/reports/BSR_UN_Guiding_Principles_and_ICT.final.pdf). The attached article shows how hard it is. 
The Guiding Principles are a set of Guidelines that governments are supposed to encourage firms to follow to respect and protect human rights.  Firms are supposed to: 
--develop and articulate a human rights policy and make sure employees/stakeholders know, understand and implement it
--conduct human rights due diligence
--do a human rights impact assessment (I can explain, but basically evaluate their human rights footprint, which is really hard to do without human rights metrics)
--monitor human rights performance (develop metrics) and hold people accountable for performance.

Suggested steps: 

1. an e discussion, open to all, facilitated, asking for ideas on how ICANN can weigh its effects on human rights .   Get the message out you are trying.
2. delegation of a Board member and ICANN official with responsibility for human rights  (As senior as possible)
3.  development of human rights policies by staff (perhaps with help from an advisory committee that is globally balanced but includes people who know human rights vs. Internet issues)  It is important to understand the juggling act re. human rights...
4.  open meeting for feedback on the policy and strategies by which employees are held accountable for adhering to the policy
5. then, per Roy, Joanna and others, creation of a formal HR advisory board
6.  assessment of ICANN's human rights impact
7.  constant feedback and modes of accountability--e.g. we found this, here's what we did
7. metrics to evaluate ICANN's impact on human rights. 

My expertise on these issue: scholar of trade and digital rights; scholar of trade and human rights; former advisor to John Ruggie, UN Special Representative on Business and Human Rights.

-- 
Susan Ariel Aaronson, Ph.D.
Research Professor of International Affairs, Institute of International Economic Policy
Elliott School of International Affairs, George Washington University
http://www.gwu.edu/~elliott/faculty/aaronson.cfm

Please visit the Trade and the Internet Project Web site:
http://www.gwu.edu/~iiep/governance/taig/

See http://tinyurl.com/lanrzda
for advice on digital trade and internet freedom 
http://www.gwu.edu/~iiep/researchandpublications/signatureinitiatives/governance/Trade_Trust_Transparency_Accountability/

Work on trade, trust, and accountability: http://tinyurl.com/of9loy8

Please visit my SSRN user page: http://ssrn.com/author=1145702