James, all,

I am in receipt of Stephanie's comments on the proposed harassment letter. I encourage the Council to consider many of these suggested changes to be the equivalent of hostile amendments to the work produced by our small Council working group and to reject most of them, both on procedural and substantive grounds, The document produced by the small Council working group led by Jennifer is far superior to one incorporating changes proposed at the last minute by Stephanie and should be used as our references note going forward.

PROCEDURAL PROBLEMS

A note about how we have worked on this matter as a Council. At the Marrakech meeting I raised the issue of sexual harassment. A small working group was formed consisting of four Councillors from the NCSG - myself, Stefania, Marilia, David - and one Councillor from the Registrars in Jennifer. All Councillors were invited to join this group. Mary Wong kickstarted the group into action with an e-mail of March 25th. Jennifer immediately took the lead and on March 28th produced the prototype of the document now before us. I immediately suggested a few minor changes to the document, which were accepted. There were 17 email exchanges amongst the members of the small working group and staff prior to release of the final document to the general Councll list.

Once on the Council list suggestions and comments made on a timely basis by Donna and Phil, were acknowledged by Jennifer, and incorporated into the document. Stephanie responded on April 6th with some general comments that I believe could are best summarised by this part of her post:

"It is my view that we need a privacy policy more than a harassment policy because I feel that inappropriate conduct is already in fact covered by by our acceptable conduct policy"

This represents a completely different view than that adopted by the small working group. I personally reject both the premise and the conclusion. Harassment is a specific type of conduct that has connotations beyond the term "inappropriate". It is not adequately covered by current policy. I should note that although Stephanie's comments have been on list for twelve days, no one other Councillor has posted agreement with Stephanie's view that ICANN should deal with the situation at hand through it's acceptable conduct policy.

As Stephanie's suggestions were a bit different in format than the other comments and not as easy to adapt to the document at hand on April 6th Jennifer asked Stephanie to produce a red line version of her comments. On April 7th Stephanie agreed. This project had a completion deadline of April 14th. No other Councillor objected to the small group proposal on list between the 7th and 14th. Then on our monthly call Stephanie verbally objected to our draft, the time frame was extended and we waited through the weekend for her input. Finally, eleven days after she agreed to produce a red line document, four days after the initial project deadline, Stephanie has responded. Thank you for your input, Stephanie.

If this material had been produced in a timely manner it could have stimulated discussion on the list, it could have stimulated discussion on our call. Instead, I view this as no more than a way of almost hijacking the process, I'm sure without any malicious intent - Stephanie has impeccable integrity, at the very end so in the end the positions she espouses are adopted out of necessity rather than as a result of considered debate. I'm somewhat resentful that I now have to spend a few hours of my Monday responding to wholesale suggestions of change that were promised weeks earlier. If the Council is to allow this type of behaviour then why would any of us join small working groups? Why not just wait until the end, past the deadline, of all projects and then object to things when you have the most leverage? I don't believe this is an optimal way to conduct our business, whatever the reason.

I also take exception to Stephanies claim that "I attach a markup version of both documents. I have circulated them to the NCSG". As far and I can tell, that simply is not true. I have not seen these documents prior to this post to the Council list. I've checked both the NCSG discussion list and the archives of the NCSG policy committee list and no such "circulation" seems to have occurred. Those are our only two official mailing lists in the NCSG. I also note that the majority of NCSG Councillors were on the small team that Jennifer so aptly led. The NCSG had ample opportunity as a group to object to the proposed reference note in a timely manner and chose not to do so.

SUBSTANTIVE PROBLEMS

1. Stephanie has created at the outset a list of questions. Some of these have suggested outcomes that we did consider early in the small group and rejected, others would have been appropriate to consider at that time. Stephanie chose not to join this group and to challenge our decisions only at this late date.

While events at ICANN55 focused on the need for a Conference Harassment Policy, would it not be prudent to create a Harassment Policy that covers all of ICANN’s activities?

No.

Let's be clear: ICANN already has a variety of harassment policies. There is a harassment policy, required by California law, that covers employees. There is the Expected Standards of Behaviour which may or may not cover some forms of harassment. That policy was found to be flawed in the most recent highly publicised situation. I should note that both parties in that matter support the development of a conference sexual harassment policy.

ICANN is an outlier in not having a conference harassment policy. The International Association of Conference Centres recommends as standard industry practice that a "conference specific, clearly defined policy against harassment be posted at prominent entry points". I see no reason for ICANN to reject standard industry practice in this regard.

Meetings introduce the concept of "clear and present danger" into the equation. The standards for behaviour of those in close physical proximity to one another may necessarily need to be bit more stringent than that of a more general policy.

Harassment itself is also different than general conduct standards in that for harassment to occur it must be directed towards a specific individual. There is also a mens rea component of harassment not present in most of the items contained in the Expected Standards.

ICANN is best served by a conference specific harassment policy with clearly defined roles and responsibilities.

That said, I certainly would have no objection if a phrase akin to "we hope that the development of a conference harassment policy is only the first step towards developing a wider policy against harassment in all of ICANN's activities and affairs" were added to the letter if that would meet with Stephanie's approval.

2. If not, how does one deal with harassment that continues after an event, or starts online or through conference calls, meetings, etc. outside the actual face to face conferences?

Through normal processes. This is not an either / or situation. Some, including myself, believe that the lack of a conference specific policy is a hole in an otherwise satisfactory policy requiring civil behaviour. I should also note that ICANN is not a state. There are also opportunities to deal with these matters through normal channels. However, given that ICANN does hold meetings in countries where harassment may be permitted legally, a specific conference harassment policy does provide some de facto assurance of some protection within the meeting site. It is a challenge. See, for example: http://www.dailymail.co.uk/news/article-3534495/US-woman-jailed-insulting-United-Arab-Emirates.html as to what we are facing going forward.

3. What is the purpose of a harassment policy, and how does it intersect with the existing standards of behavior policy? (https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf

The purpose of a conference harassment policy is to create policy which produces an environment in which all attendees are comfortable in and is one which attendees are free from harassment of any kind. It does so by delineating specific conduct that is prohibited and by establishing clear reporting obligations and requirements. This is far greater than the current ESB requirement that everyone act civilly towards one another.

I would also opine that the current policy does not work when applied to this type of incident and the lack of a conference policy of a specific nature exposes ICANN legally.

4. How does one differentiate between inappropriate remarks or actions, and harassing, demeaning, and abusive behavior? Many harassment policies scope the offensive activity or actions in terms of repeated behavior that forms a pattern, or if only a single event, an event that is of very significant proportions (eg physical contact). A policy must be clear enough that when Implementation guidance and training is provided, our global multicultural audience will be able to understand clearly when conduct and speech are unwelcome or inappropriate, and when they are very offensive to normal sensibilities and constitute harassment. Defining normal will be challenging.

These question largely go to implementation and are beyond the scope of our current, initial, policy reference point.

Regarding Stephanies criticisms of specific points contained in the "ICANN Conference Harassment Policy - Key Points" distributed by James on 15 April at 22:55 UTC:

1. I support the text as written without any changes, although certainly believe it could be approved. Please remember this is a mere reference point.

2. As harassment by definition is directed at an individual I reject Stephanies concerns for the section beginning "inappropriate communication".

3. As Stephanie rightly notes ICANN as a private corporation has no control over whether an accused party seeks legal redress for any perceived harm. The prohibition against retaliation is a necessary clause that encourages victims to come forward but as with all policies written by a private corporation the effect of said policy is limited to the corporations remit. That is true of this entire document. I woulds not want to limit the language as operation of law already constrains it's reach and I would prefer that the anti-retaliatory language be as broad as legally possible. The current language meets that goal. I should note the same concerns have been expressed concerning whistleblower policies and have been found to be lacking.

4. I reject Stephanie's assertion that you need to "train a couple of thousand conference attendees to recognise and prohibit this type of conduct". That is FUD. This policy empowers those who witness such behaviour to report it given that often the power relationship involved makes it impossible for the victim to report it. I note this is mere reporting; no judgement as to validity of the complaint is being made.

Although I would prefer to keep the language as is, I would have no objection to changing "should immediately" to "are encouraged to immediately" if that would address some of Stephanie's concerns.

5. I not only reject Stephanie's assumption that the Ombudsman is or should be the first line for reporting, our small group, at my request, deleted this concept from our proposal. First, the Ombudsman in not empowered by the ICANN Bylasws to conduct investigations into relations between parties that have no direct contractual relationship with ICANN. That he did in the most recent publicised incident is being considered for litigation (against ICANN) by one of the parties involved and has prompted me to write a letter to Steve Crocker asking for an explanation / justification (response yet to be received). There are people within ICANN corporate in the human relations department who have expertise in this area and who I believe are far better qualified to handle these types of complaints than the Ombudsman. That said, I would prefer for ICANN corporate, not us, to establish the reporting structure in line with other responsibilities and expertise of their employees.

6. The line "ICANN will protect the confidentiality of individual(s) reporting suspected violations of the incident(s) to the extent permissible and with due regard for procedural fairness" is good language and should be retained. Stephanie's proposed substitution is too limiting ('investigations and interviews conducted under this policy"), too defined ("confidential") and would expose ICANN to greater legal liability should a party be dissatisfied. The text in the proposed document is read as a "best effort" clause and would not expose ICANN legally except in the case of gross negligence.

7. I agree with the clause requiring staff members who become aware of "any form of harassment or potential incidents": to report them to the front line employee given responsibility for these matters. This is not just good policy in terms of stopping harassment, this is good policy in terms of limiting ICANN's exposure to lawsuits resulting from such incidents.

I do not believe putting links to nonspecific government harassment policies has any value whatsoever. ICANN is not a government, it is a private corporation. We are not trying to create, in this action, a comprehensive harassment policy, but rather a conference harassment policy. Links to specific conference harassment policies, of course, would be most welcome if anyone wants to spend the time to find and link to them.

As stated, I would prefer to keep the letter and reference document as written. I respectfully disagree with Stephanie on many of her comments and by timing her response so late there really isn't time to engage in a full conversation as would be desirable.

However, if it is deemed permissible for Stephanie's last minute changes to the proposed document to be accepted over my objection then I respectfully request the following additional changes be made:

- Addition of an opening clause

?This policy aims to strengthen and safeguard the ICANN working environment so that it is a welcoming and enabling diverse environment for stakeholders from all backgrounds.

- Change the word 'colour' to 'ethnicity'

- Exclude the word 'disability', as that term is now considered to be somewhat derogatory'; handicap should suffice

- change 'sex' in all instances to 'gender'; 'sex' has connotations that does not fully describe the wide array of possible sexual identification categories that 'gender' does;

-, include 'stalking' as a prohibited offense

Again, my preference would be to go with the document as is. I will remind everyone that this is merely a reference note to provide an example of what a policy might look like. There will be ample opportunity for the community to weigh in on the actual proposed policy at a later date.

I note also that Phil has made some additional recommendations today to strengthen the proposal. My principle objection is timing (although in a different procedural environment I would consider them friendly amendments) - I am generally in agreement , at least in part, with all but one of his proposed changes. I will note that Phil's earlier recommendations have been incorporated into the document. His current proposals and my responses:

1. What procedural due process protections will be established for parties to the dispute, and what standard of proof shall be required for an adverse finding.

I agree that this would be a useful addition to the accompanying letter as a bullet point.

2. I believe we need a standard that requires some intent on the part of the alleged harasser to demean, denigrate, harass, etc.

Harassment by legal definition has a mens rea component. I would not object to making this clear in the policy document but do not believe it is necessary.

3. policy needs to be further developed to make clear that conduct of a criminal nature (assault, indecent exposure, rape) is outside the scope of any harassment policy and is to be reported by ICANN to the proper authorities.

We need to be careful here. It may not be clear whether an activity is or is not illegal. I would not want to create any legal obligation for ICANN to report any alleged crime. I'd suggest that rather than put this in out policy proposal we add another bullet point to the letter akin to:

- We believe procedures need to be developed so that those matters that are violations of law are reported immediately by ICANN or the complaining party to the proper authorities.

I think we need to note this but I would be hesitant in a rushed manner to come up with exact wording within the proposed "key points". I'm fine with a bullet point in the letter.

- “You should report any actions that you believe may violate this policy no matter how slight the actions might seem” I would suggest deleting everything after the word “policy”, leaving more discretion to a target or witness to decide when to invoke whatever procedures may be created to deal with harassment.

I agree.

-Finally, I would suggest that the term “ICANN Conference” needs to be clearly defined to make clear its breadth. That is, does it only cover incidents that occur at the official meeting site or are other locations and activities covered; such as meeting sponsor social events, official meeting hotels, etc.?

Good point. I would limit the policy to the meeting itself, I don't believe ICANN should limit the free expression rights of sponsoring organisation, but am open to other ideas.

WAY FORWARD

The GNSO is late in making this submission. We do need to act now.

My preference would to have had this conversation during the past few weeks these documents have been posted and open for participation.

I have no objection to changes in the documents to which there is no on list opposition. I have, however, objected to several of the changes proposed for substantive policy reasons. These documents have been available and open for comment for about two weeks. The deadline for this project was supposed to be last Thursday. Unless more widespread opposition is voiced, I would suggest the document as presented in James weekend e-mail be considered approved and sent. That said, I have no objection to requested changes by Stephanie and Phil that have not met with any opposition by EOB today to be incorporated in the final document. Where challenged, however, I believe we should stick with the original language in the absence of more widespread opposition.

I want to thank all my my colleagues for their work on this and, in particular, Jennifer, whose leadership and hard work have made this happen. I have very much enjoyed working with her.

Respectfully,