Letter regarding Harassment / Conduct at ICANN Meetings
Council Colleagues - As discussed during yesterday's call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I've edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or "Key Points" document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks- J.
Thanks for sharing this, James. These are strictly personal comments, as I have not yet had an opportunity to share these materials with BC members or receive their feedback. I will share your message and this response with them. I am generally OK with the letter, but would propose one additional bullet point, as follows: * 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. In regard to the Key Points document, I appreciate that the subjective term "offensive" was struck after my prior comments, and replaced with the somewhat better "unwanted/inappropriate" characterization. However, especially as pertains to speech of a non-sexual character,, I believe we need a standard that requires some intent on the part of the alleged harasser to demean, denigrate, harass, etc. In regard to physical conduct, I would suggest that the 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. In regard to the sentence "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. 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.? I hope that these comments are useful in formulating a policy that effectively deals with harassment incidents while providing adequate specificity and due process. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of James M. Bladel Sent: Friday, April 15, 2016 4:19 PM To: GNSO Council List Subject: [council] Letter regarding Harassment / Conduct at ICANN Meetings Council Colleagues - As discussed during yesterday's call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I've edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or "Key Points" document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks- J. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4545/12005 - Release Date: 04/10/16
Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote:
Council Colleagues -
As discussed during yesterday’s call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I’ve edited the Key Points document to reflect the most recent comments on the thread).
If you have any comments or edits to the letter or “Key Points” document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups.
The target is to post this letter by Tuesday, 19 APR.
Thanks—
J.
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-Un... 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-j... 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, Ed ---------------------------------------- From: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca> Sent: Monday, April 18, 2016 4:10 AM To: "James M. Bladel" <jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org> Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote: Council Colleagues - As discussed during yesterday's call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I've edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or "Key Points" document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks- J.
Hi all, a recent mail on a PDP WG reminded me that we should work on a more general policy. While the current plans would take care of one "flavor" of inappropriate behavior, there are many more that would not be addressed by a policy focussed only on sexual harrassment. For example religious proselytizing has no room within ICANN either. Best, Volker Am 18.04.2016 um 14:57 schrieb Edward Morris:
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. -
1. 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-Un... 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-j... 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, Ed ------------------------------------------------------------------------ *From*: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca> *Sent*: Monday, April 18, 2016 4:10 AM *To*: "James M. Bladel" <jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org> *Subject*: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote:
Council Colleagues - As discussed during yesterday’s call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I’ve edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or “Key Points” document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks— J.
-- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems www.twitter.com/key_systems Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. Jede Form der Kenntnisgabe, Veröffentlichung oder Weitergabe an Dritte durch den Empfänger ist unzulässig. Sollte diese Nachricht nicht für Sie bestimmt sein, so bitten wir Sie, sich mit uns per E-Mail oder telefonisch in Verbindung zu setzen. -------------------------------------------- Should you have any further questions, please do not hesitate to contact us. Best regards, Volker A. Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net Web: www.key-systems.net / www.RRPproxy.net www.domaindiscount24.com / www.BrandShelter.com Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems www.twitter.com/key_systems CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. You must not use, disclose, copy, print or rely on this e-mail. If an addressing or transmission error has misdirected this e-mail, kindly notify the author by replying to this e-mail or contacting us by telephone.
Volker: Respectfully, your comment makes me even more uneasy about the path we seem to be proceeding down. This dialogue began with a general consensus that some form of sexual harassment policy was needed for ICANN meetings. Then it expanded to cover other forms of verbal behavior that someone might find offensive , objectionable, or harassing. Now you suggest that a policy should cover not just statements denigrating an individual's religious preference but an affirmative statement of religious belief. I would agree that proselyting for any spiritual outlook or belief system is not germane to a WG's responsibilities, but the GNSO WG rules already provide the Chair(s) with authority to take action against disruptive or irrelevant postings. What next will be added to the list of potential offenses? Political statements? - try discussing the current US Presidential election without offending someone. Not even the weather is a safe subject, given the polarization of views over global warning. I would hope that we can keep any list of possible verbal offenses (I am excluding physical acts from these comments, as they are a whole other matter) that can give rise to initiation of an investigative/adjudicatory procedure to those that are really intentional and serious, and not one-off or boneheaded statements for which a simple admonition and apology might resolve the matter. We need to preserve ICANN as an open forum for expression of views. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Volker Greimann Sent: Monday, April 18, 2016 9:27 AM To: egmorris1@toast.net; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Hi all, a recent mail on a PDP WG reminded me that we should work on a more general policy. While the current plans would take care of one "flavor" of inappropriate behavior, there are many more that would not be addressed by a policy focussed only on sexual harrassment. For example religious proselytizing has no room within ICANN either. Best, Volker Am 18.04.2016 um 14:57 schrieb Edward Morris: 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. - 1. 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-Un... 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-j... 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, Ed ________________________________ From: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca><mailto:stephanie.perrin@mail.utoronto.ca> Sent: Monday, April 18, 2016 4:10 AM To: "James M. Bladel" <jbladel@godaddy.com><mailto:jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org><mailto:council@gnso.icann.org> Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote: Council Colleagues - As discussed during yesterday's call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I've edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or "Key Points" document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. 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Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. 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Hello All, Not to further jump on the bandwagon, just to restate the main objective of this working group was to create a document that addresses 'Harassment at ICANN Conference/Events'. In my opinion, if we expand the scope to include religion, political viewpoints, etc. we will need to go back to the drawing board. Reg Levy provided a great online source for reference on the Registrar Stakeholder Distribution list today: https://adainitiative.org/continue-our-work/conference-policies/ Unfortunately, the source is geared towards women, however I believe it would be relevant to refer to it within the attached document if and when we decide to send it to ICANN. The source includes key items such as: · Example of a Conference Anti-Harassment Policy · List of Conferences that have a Policy · Why such a Policy is needed I realize we have received constructive input in the last 2-3 days and it was my conclusion that the council agreed to move forward on a submission by close of business today, Monday 4.18.16. So I am a little unsure as to how we should proceed? ICANN Staff, James, Councilors - thoughts on this matter? Thank you, Jennifer From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Phil Corwin Sent: Monday, April 18, 2016 12:24 PM To: Volker Greimann; egmorris1@toast.net; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings Volker: Respectfully, your comment makes me even more uneasy about the path we seem to be proceeding down. This dialogue began with a general consensus that some form of sexual harassment policy was needed for ICANN meetings. Then it expanded to cover other forms of verbal behavior that someone might find offensive , objectionable, or harassing. Now you suggest that a policy should cover not just statements denigrating an individual's religious preference but an affirmative statement of religious belief. I would agree that proselyting for any spiritual outlook or belief system is not germane to a WG's responsibilities, but the GNSO WG rules already provide the Chair(s) with authority to take action against disruptive or irrelevant postings. What next will be added to the list of potential offenses? Political statements? - try discussing the current US Presidential election without offending someone. Not even the weather is a safe subject, given the polarization of views over global warning. I would hope that we can keep any list of possible verbal offenses (I am excluding physical acts from these comments, as they are a whole other matter) that can give rise to initiation of an investigative/adjudicatory procedure to those that are really intentional and serious, and not one-off or boneheaded statements for which a simple admonition and apology might resolve the matter. We need to preserve ICANN as an open forum for expression of views. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Volker Greimann Sent: Monday, April 18, 2016 9:27 AM To: egmorris1@toast.net<mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Hi all, a recent mail on a PDP WG reminded me that we should work on a more general policy. While the current plans would take care of one "flavor" of inappropriate behavior, there are many more that would not be addressed by a policy focussed only on sexual harrassment. For example religious proselytizing has no room within ICANN either. Best, Volker Am 18.04.2016 um 14:57 schrieb Edward Morris: 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. - 1. 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-Un... 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-j... 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, Ed ________________________________ From: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca><mailto:stephanie.perrin@mail.utoronto.ca> Sent: Monday, April 18, 2016 4:10 AM To: "James M. Bladel" <jbladel@godaddy.com><mailto:jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org><mailto:council@gnso.icann.org> Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote: Council Colleagues - As discussed during yesterday's call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I've edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or "Key Points" document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks- J. -- Bei weiteren Fragen stehen wir Ihnen gerne zur Verfügung. Mit freundlichen Grüßen, Volker A. Greimann - Rechtsabteilung - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Folgen Sie uns bei Twitter oder werden Sie unser Fan bei Facebook: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> Geschäftsführer: Alexander Siffrin Handelsregister Nr.: HR B 18835 - Saarbruecken Umsatzsteuer ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> Der Inhalt dieser Nachricht ist vertraulich und nur für den angegebenen Empfänger bestimmt. 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Greimann - legal department - Key-Systems GmbH Im Oberen Werk 1 66386 St. Ingbert Tel.: +49 (0) 6894 - 9396 901 Fax.: +49 (0) 6894 - 9396 851 Email: vgreimann@key-systems.net<mailto:vgreimann@key-systems.net> Web: www.key-systems.net<http://www.key-systems.net> / www.RRPproxy.net<http://www.RRPproxy.net> www.domaindiscount24.com<http://www.domaindiscount24.com> / www.BrandShelter.com<http://www.BrandShelter.com> Follow us on Twitter or join our fan community on Facebook and stay updated: www.facebook.com/KeySystems<http://www.facebook.com/KeySystems> www.twitter.com/key_systems<http://www.twitter.com/key_systems> CEO: Alexander Siffrin Registration No.: HR B 18835 - Saarbruecken V.A.T. ID.: DE211006534 Member of the KEYDRIVE GROUP www.keydrive.lu<http://www.keydrive.lu> This e-mail and its attachments is intended only for the person to whom it is addressed. Furthermore it is not permitted to publish any content of this email. 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Hello Jennifer and everyone, I believe that James intends to circulate a revised draft to the list, hopefully by later today, incorporating the new comments from everyone as much as possible. Given these comments and the need for further revisions to the last draft, I also believe that the Chairs will be asking for sign-off or objections to the new draft by this Wednesday (instead of Tuesday). James, Heather or Donna – please correct me if I got any of this wrong. I hope this helps. Cheers Mary Mary Wong Senior Policy Director Internet Corporation for Assigned Names and Numbers (ICANN) Email: mary.wong@icann.org Telephone: +1-603-5744889 From: <owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org>> on behalf of Jennifer Gore Standiford <JStandiford@web.com<mailto:JStandiford@web.com>> Date: Monday, April 18, 2016 at 13:57 To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Volker Greimann <vgreimann@key-Systems.net<mailto:vgreimann@key-Systems.net>>, "egmorris1@toast.net<mailto:egmorris1@toast.net>" <egmorris1@toast.net<mailto:egmorris1@toast.net>>, "James M. Bladel" <jbladel@godaddy.com<mailto:jbladel@godaddy.com>>, GNSO Council List <council@gnso.icann.org<mailto:council@gnso.icann.org>>, Stephanie Perrin <stephanie.perrin@mail.utoronto.ca<mailto:stephanie.perrin@mail.utoronto.ca>> Subject: RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings Hello All, Not to further jump on the bandwagon, just to restate the main objective of this working group was to create a document that addresses ‘Harassment at ICANN Conference/Events’. In my opinion, if we expand the scope to include religion, political viewpoints, etc. we will need to go back to the drawing board. Reg Levy provided a great online source for reference on the Registrar Stakeholder Distribution list today: https://adainitiative.org/continue-our-work/conference-policies/ Unfortunately, the source is geared towards women, however I believe it would be relevant to refer to it within the attached document if and when we decide to send it to ICANN. The source includes key items such as: · Example of a Conference Anti-Harassment Policy · List of Conferences that have a Policy · Why such a Policy is needed I realize we have received constructive input in the last 2-3 days and it was my conclusion that the council agreed to move forward on a submission by close of business today, Monday 4.18.16. So I am a little unsure as to how we should proceed? ICANN Staff, James, Councilors – thoughts on this matter? Thank you, Jennifer From: owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Phil Corwin Sent: Monday, April 18, 2016 12:24 PM To: Volker Greimann; egmorris1@toast.net<mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings Volker: Respectfully, your comment makes me even more uneasy about the path we seem to be proceeding down. This dialogue began with a general consensus that some form of sexual harassment policy was needed for ICANN meetings. Then it expanded to cover other forms of verbal behavior that someone might find offensive , objectionable, or harassing. Now you suggest that a policy should cover not just statements denigrating an individual’s religious preference but an affirmative statement of religious belief. I would agree that proselyting for any spiritual outlook or belief system is not germane to a WG’s responsibilities, but the GNSO WG rules already provide the Chair(s) with authority to take action against disruptive or irrelevant postings. What next will be added to the list of potential offenses? Political statements? – try discussing the current US Presidential election without offending someone. Not even the weather is a safe subject, given the polarization of views over global warning. I would hope that we can keep any list of possible verbal offenses (I am excluding physical acts from these comments, as they are a whole other matter) that can give rise to initiation of an investigative/adjudicatory procedure to those that are really intentional and serious, and not one-off or boneheaded statements for which a simple admonition and apology might resolve the matter. We need to preserve ICANN as an open forum for expression of views. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Volker Greimann Sent: Monday, April 18, 2016 9:27 AM To: egmorris1@toast.net<mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Hi all, a recent mail on a PDP WG reminded me that we should work on a more general policy. While the current plans would take care of one "flavor" of inappropriate behavior, there are many more that would not be addressed by a policy focussed only on sexual harrassment. For example religious proselytizing has no room within ICANN either. Best, Volker Am 18.04.2016 um 14:57 schrieb Edward Morris: 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. - 1. 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-Un... 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-j... 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, Ed ________________________________ From: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca><mailto:stephanie.perrin@mail.utoronto.ca> Sent: Monday, April 18, 2016 4:10 AM To: "James M. Bladel" <jbladel@godaddy.com><mailto:jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org><mailto:council@gnso.icann.org> Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote: Council Colleagues - As discussed during yesterday’s call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I’ve edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or “Key Points” document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. 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I’ve suggested this source previously elsewhere - its a very useful resource. While the creating organisation, the Ada Initiative, has shut down, I know some people involved and would be happy to get in touch with them for further advice if it would be useful. Regards David
On 18 Apr 2016, at 1:57 PM, Jennifer Gore Standiford <JStandiford@web.com> wrote:
Hello All,
Not to further jump on the bandwagon, just to restate the main objective of this working group was to create a document that addresses ‘Harassment at ICANN Conference/Events’. In my opinion, if we expand the scope to include religion, political viewpoints, etc. we will need to go back to the drawing board. Reg Levy provided a great online source for reference on the Registrar Stakeholder Distribution list today:
https://adainitiative.org/continue-our-work/conference-policies/ <https://adainitiative.org/continue-our-work/conference-policies/>
Unfortunately, the source is geared towards women, however I believe it would be relevant to refer to it within the attached document if and when we decide to send it to ICANN.
The source includes key items such as:
· Example of a Conference Anti-Harassment Policy · List of Conferences that have a Policy · Why such a Policy is needed
I realize we have received constructive input in the last 2-3 days and it was my conclusion that the council agreed to move forward on a submission by close of business today, Monday 4.18.16. So I am a little unsure as to how we should proceed?
ICANN Staff, James, Councilors – thoughts on this matter?
Thank you, Jennifer
From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Phil Corwin Sent: Monday, April 18, 2016 12:24 PM To: Volker Greimann; egmorris1@toast.net; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings
Volker:
Respectfully, your comment makes me even more uneasy about the path we seem to be proceeding down.
This dialogue began with a general consensus that some form of sexual harassment policy was needed for ICANN meetings. Then it expanded to cover other forms of verbal behavior that someone might find offensive , objectionable, or harassing.
Now you suggest that a policy should cover not just statements denigrating an individual’s religious preference but an affirmative statement of religious belief. I would agree that proselyting for any spiritual outlook or belief system is not germane to a WG’s responsibilities, but the GNSO WG rules already provide the Chair(s) with authority to take action against disruptive or irrelevant postings.
What next will be added to the list of potential offenses? Political statements? – try discussing the current US Presidential election without offending someone. Not even the weather is a safe subject, given the polarization of views over global warning.
I would hope that we can keep any list of possible verbal offenses (I am excluding physical acts from these comments, as they are a whole other matter) that can give rise to initiation of an investigative/adjudicatory procedure to those that are really intentional and serious, and not one-off or boneheaded statements for which a simple admonition and apology might resolve the matter. We need to preserve ICANN as an open forum for expression of views.
Best to all, Philip
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: owner-council@gnso.icann.org <mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org <mailto:owner-council@gnso.icann.org>] On Behalf Of Volker Greimann Sent: Monday, April 18, 2016 9:27 AM To: egmorris1@toast.net <mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings
Hi all,
a recent mail on a PDP WG reminded me that we should work on a more general policy. While the current plans would take care of one "flavor" of inappropriate behavior, there are many more that would not be addressed by a policy focussed only on sexual harrassment. For example religious proselytizing has no room within ICANN either.
Best,
Volker
Am 18.04.2016 um 14:57 schrieb Edward Morris:
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-Un... <http://www.dailymail.co.uk/news/article-3534495/US-woman-jailed-insulting-Un...> 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-j... <https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-j...>
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,
Ed
From: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca> <mailto:stephanie.perrin@mail.utoronto.ca> Sent: Monday, April 18, 2016 4:10 AM To: "James M. Bladel" <jbladel@godaddy.com> <mailto:jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org> <mailto:council@gnso.icann.org> Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings
Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin
On 2016-04-15 16:18, James M. Bladel wrote: Council Colleagues -
As discussed during yesterday’s call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I’ve edited the Key Points document to reflect the most recent comments on the thread).
If you have any comments or edits to the letter or “Key Points” document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups.
The target is to post this letter by Tuesday, 19 APR.
Thanks—
J.
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That is indeed a terrific resource, and in my opinion should be included in what we send. I think one of the problems we face as a multi-stakeholder community is that we are not just people who attend a conference, we work together on an ongoing basis and this is why I suggested calling the document a harassment policy....you don't want to be caught with stalking on email being deemed "out of scope" because it did not start at a conference, just as one example. I appreciate the need to keep this simple and not expand but it is not that easy, given our structure and long term relationships. In stating my preference for a privacy policy, I would like to explain that the reason for this, is that creating documents related to investigation of harassment incidents, including testimony of third parties, immediately raises privacy issues. The Ombudsman, on his recent blog, has alluded to privacy issues. You can of course draft a harassment policy that deals extensively with expectations of confidentiality, repercussions for breach of confidentiality, access to records, etc. But it would be preferable to have a privacy policy that deals with some of these issues, in my view. When a harassment incident takes place in a jurisdiction that has data protection law that would cover ICANN and its activities and records, it might be that an individual would have rights to request all documentation relating to them. This can be quite problematic if you have assured witnesses of confidentiality, you have a duty to at least inform them that their testimony could be released to the individuals concerned. Even now, if the Ombudsman has a record system under his control housed in New Zealand a person might be able to request all documents related to themselves. I therefore think it prudent to set your privacy expectations in a sound privacy policy, before venturing into an area (harassment) where we know there is a great volume of complaints, investigation, and counter complaints. At least this is the case in Canada. Possibly California's law is more clear, and there is less litigation, but it is in my view not the case that California law will apply in all cases and venues. However, as always, I defer to the lawyers in this regard. Stephanie Perrin On 2016-04-18 15:05, David Cake wrote:
I’ve suggested this source previously elsewhere - its a very useful resource. While the creating organisation, the Ada Initiative, has shut down, I know some people involved and would be happy to get in touch with them for further advice if it would be useful.
Regards
David
On 18 Apr 2016, at 1:57 PM, Jennifer Gore Standiford <JStandiford@web.com <mailto:JStandiford@web.com>> wrote:
Hello All, Not to further jump on the bandwagon, just to restate the main objective of this working group was to create a document that addresses ‘Harassment at ICANN Conference/Events’. In my opinion, if we expand the scope to include religion, political viewpoints, etc. we will need to go back to the drawing board. Reg Levy provided a great online source for reference on the Registrar Stakeholder Distribution list today: https://adainitiative.org/continue-our-work/conference-policies/ Unfortunately, the source is geared towards women, however I believe it would be relevant to refer to it within the attached document if and when we decide to send it to ICANN. The source includes key items such as: ·Example of a Conference Anti-Harassment Policy ·List of Conferences that have a Policy ·Why such a Policy is needed I realize we have received constructive input in the last 2-3 days and it was my conclusion that the council agreed to move forward on a submission by close of business today, Monday 4.18.16. So I am a little unsure as to how we should proceed? ICANN Staff, James, Councilors – thoughts on this matter? Thank you, Jennifer *From:*owner-council@gnso.icann.org <mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org]*On Behalf Of*Phil Corwin *Sent:*Monday, April 18, 2016 12:24 PM *To:*Volker Greimann; egmorris1@toast.net <mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin *Subject:*RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings Volker: Respectfully, your comment makes me even more uneasy about the path we seem to be proceeding down. This dialogue began with a general consensus that some form of sexual harassment policy was needed for ICANN meetings. Then it expanded to cover other forms of verbal behavior that someone might find offensive , objectionable, or harassing. Now you suggest that a policy should cover not just statements denigrating an individual’s religious preference but an affirmative statement of religious belief. I would agree that proselyting for any spiritual outlook or belief system is not germane to a WG’s responsibilities, but the GNSO WG rules already provide the Chair(s) with authority to take action against disruptive or irrelevant postings. What next will be added to the list of potential offenses? Political statements? – try discussing the current US Presidential election without offending someone. Not even the weather is a safe subject, given the polarization of views over global warning. I would hope that we can keep any list of possible verbal offenses (I am excluding physical acts from these comments, as they are a whole other matter) that can give rise to initiation of an investigative/adjudicatory procedure to those that are really intentional and serious, and not one-off or boneheaded statements for which a simple admonition and apology might resolve the matter. We need to preserve ICANN as an open forum for expression of views. Best to all, Philip *Philip S. Corwin, Founding Principal* *Virtualaw LLC* *1155 F Street, NW* *Suite 1050* *Washington, DC 20004* *202-559-8597/Direct* *202-559-8750/Fax* *202-255-6172/Cell* ** *Twitter: @VlawDC* */"Luck is the residue of design" -- Branch Rickey/* *From:*owner-council@gnso.icann.org <mailto:owner-council@gnso.icann.org>[mailto:owner-council@gnso.icann.org]*On Behalf Of*Volker Greimann *Sent:*Monday, April 18, 2016 9:27 AM *To:*egmorris1@toast.net <mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin *Subject:*Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings
Hi all,
a recent mail on a PDP WG reminded me that we should work on a more general policy. While the current plans would take care of one "flavor" of inappropriate behavior, there are many more that would not be addressed by a policy focussed only on sexual harrassment. For example religious proselytizing has no room within ICANN either.
Best,
Volker
Am 18.04.2016 um 14:57 schrieb Edward Morris:
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. -
1. 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-Un... 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-j... 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, Ed ------------------------------------------------------------------------ *From*: "Stephanie Perrin"<stephanie.perrin@mail.utoronto.ca> <mailto:stephanie.perrin@mail.utoronto.ca> *Sent*: Monday, April 18, 2016 4:10 AM *To*: "James M. Bladel"<jbladel@godaddy.com> <mailto:jbladel@godaddy.com>, "GNSO Council List"<council@gnso.icann.org> <mailto:council@gnso.icann.org> *Subject*: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote:
Council Colleagues - As discussed during yesterday’s call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I’ve edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or “Key Points” document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks— J.
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Echoing Jennifer & Phil’s comments – I think that other offensive / disruptive speech would be covered sufficently under the existing “Expected Standards of Behavior.” Thanks— J. From: Jennifer Standiford <JStandiford@web.com<mailto:JStandiford@web.com>> Date: Monday, April 18, 2016 at 12:57 To: Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Volker Greimann <vgreimann@key-Systems.net<mailto:vgreimann@key-Systems.net>>, Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>>, James Bladel <jbladel@godaddy.com<mailto:jbladel@godaddy.com>>, GNSO Council List <council@gnso.icann.org<mailto:council@gnso.icann.org>>, Stephanie Perrin <stephanie.perrin@mail.utoronto.ca<mailto:stephanie.perrin@mail.utoronto.ca>> Subject: RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings Hello All, Not to further jump on the bandwagon, just to restate the main objective of this working group was to create a document that addresses ‘Harassment at ICANN Conference/Events’. In my opinion, if we expand the scope to include religion, political viewpoints, etc. we will need to go back to the drawing board. Reg Levy provided a great online source for reference on the Registrar Stakeholder Distribution list today: https://adainitiative.org/continue-our-work/conference-policies/ Unfortunately, the source is geared towards women, however I believe it would be relevant to refer to it within the attached document if and when we decide to send it to ICANN. The source includes key items such as: · Example of a Conference Anti-Harassment Policy · List of Conferences that have a Policy · Why such a Policy is needed I realize we have received constructive input in the last 2-3 days and it was my conclusion that the council agreed to move forward on a submission by close of business today, Monday 4.18.16. So I am a little unsure as to how we should proceed? ICANN Staff, James, Councilors – thoughts on this matter? Thank you, Jennifer From: owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Phil Corwin Sent: Monday, April 18, 2016 12:24 PM To: Volker Greimann; egmorris1@toast.net<mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: RE: [council] Letter regarding Harassment / Conduct at ICANN Meetings Volker: Respectfully, your comment makes me even more uneasy about the path we seem to be proceeding down. This dialogue began with a general consensus that some form of sexual harassment policy was needed for ICANN meetings. Then it expanded to cover other forms of verbal behavior that someone might find offensive , objectionable, or harassing. Now you suggest that a policy should cover not just statements denigrating an individual’s religious preference but an affirmative statement of religious belief. I would agree that proselyting for any spiritual outlook or belief system is not germane to a WG’s responsibilities, but the GNSO WG rules already provide the Chair(s) with authority to take action against disruptive or irrelevant postings. What next will be added to the list of potential offenses? Political statements? – try discussing the current US Presidential election without offending someone. Not even the weather is a safe subject, given the polarization of views over global warning. I would hope that we can keep any list of possible verbal offenses (I am excluding physical acts from these comments, as they are a whole other matter) that can give rise to initiation of an investigative/adjudicatory procedure to those that are really intentional and serious, and not one-off or boneheaded statements for which a simple admonition and apology might resolve the matter. We need to preserve ICANN as an open forum for expression of views. Best to all, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:owner-council@gnso.icann.org<mailto:owner-council@gnso.icann.org> [mailto:owner-council@gnso.icann.org] On Behalf Of Volker Greimann Sent: Monday, April 18, 2016 9:27 AM To: egmorris1@toast.net<mailto:egmorris1@toast.net>; James M. Bladel; GNSO Council List; Stephanie Perrin Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Hi all, a recent mail on a PDP WG reminded me that we should work on a more general policy. While the current plans would take care of one "flavor" of inappropriate behavior, there are many more that would not be addressed by a policy focussed only on sexual harrassment. For example religious proselytizing has no room within ICANN either. Best, Volker Am 18.04.2016 um 14:57 schrieb Edward Morris: 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. - 1. 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-Un... 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-j... 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, Ed ________________________________ From: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca><mailto:stephanie.perrin@mail.utoronto.ca> Sent: Monday, April 18, 2016 4:10 AM To: "James M. Bladel" <jbladel@godaddy.com><mailto:jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org><mailto:council@gnso.icann.org> Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote: Council Colleagues - As discussed during yesterday’s call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I’ve edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or “Key Points” document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. 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My apologies for the confusion, I sent my markup on the policy to the /NCSG councillors/ list, which is a Skype list including the chair of NCSG, on Thursday night. I told that list I would circulate it to the NCSG Policy Committee once I received their input. I received none, and in the meantime got the email from James with the Tuesday cutoff. My apologies also for the lateness. However, I do think this document should be discussed at Council if it is an agreed position, and we really have not had much of a discussion on it. I look forward to community input once Akram has gathered the various comments. Kind regards, Stephanie On 2016-04-18 8:57, Edward Morris wrote:
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. -
1. 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-Un... 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-j... 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, Ed ------------------------------------------------------------------------ *From*: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca> *Sent*: Monday, April 18, 2016 4:10 AM *To*: "James M. Bladel" <jbladel@godaddy.com>, "GNSO Council List" <council@gnso.icann.org> *Subject*: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote:
Council Colleagues - As discussed during yesterday’s call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I’ve edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or “Key Points” document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks— J.
Ed: In regard to your feedback on the points I raised, I'm in general agreement regarding acts that are criminal in nature. You said: 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. I think that's a good suggestion. ICANN has no competence to undertake a private investigation of a potential criminal matter; indeed, its intervention could hinder or contaminate an official inquiry. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: owner-council@gnso.icann.org [mailto:owner-council@gnso.icann.org] On Behalf Of Edward Morris Sent: Monday, April 18, 2016 8:57 AM To: James M. Bladel; GNSO Council List; Stephanie Perrin Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings 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. - 1. 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-Un... 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-j... 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, Ed ________________________________ From: "Stephanie Perrin" <stephanie.perrin@mail.utoronto.ca<mailto:stephanie.perrin@mail.utoronto.ca>> Sent: Monday, April 18, 2016 4:10 AM To: "James M. Bladel" <jbladel@godaddy.com<mailto:jbladel@godaddy.com>>, "GNSO Council List" <council@gnso.icann.org<mailto:council@gnso.icann.org>> Subject: Re: [council] Letter regarding Harassment / Conduct at ICANN Meetings Thanks for circulating this James. I agree with Phil's recent comments, but I attach a markup version of both documents. I have circulated them to the NCSG, but I think it is fair to say there are divergent views on this topic, so these are my own personal comments. As I have expressed, I think we are rushing into a complex area here and I do hope that once Akram comes up with a draft, there will be ample opportunity to discuss and refine the document. Kind regards Stephanie Perrin On 2016-04-15 16:18, James M. Bladel wrote: Council Colleagues - As discussed during yesterday's call, we intend to send a high-level letter to ICANN (Akram) on behalf of the GNSO Council, thanking him for his blog post and drawing his attention to statement from the NCUC and the draft policy created by Jennifer and others. (On this latter point, I've edited the Key Points document to reflect the most recent comments on the thread). If you have any comments or edits to the letter or "Key Points" document, please post these to the list by EOD Monday, 18 APR. Edits could include changes/additions to the language, as well as inclusion of other materials or links to statements from other groups. The target is to post this letter by Tuesday, 19 APR. Thanks- J. ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7497 / Virus Database: 4545/12005 - Release Date: 04/10/16 Internal Virus Database is out of date.
participants (8)
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David Cake -
Edward Morris -
James M. Bladel -
Jennifer Gore Standiford -
Mary Wong -
Phil Corwin -
Stephanie Perrin -
Volker Greimann