October 2016 - Ws2-hr - lists.icann.org

Report to CCWG
by Niels ten Oever Nov. 3, 2016

Nov. 3, 2016

Dear all, I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs. All your input is of course very much appreciated. Best, Niels 1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion. 2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones. 2.2 Supplemental Report See [0] 3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet. 3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet. [0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNM… -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 11 | 25 October
by MSSI Secretariat Oct. 25, 2016

Oct. 25, 2016

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #11 here; https://community.icann.org/x/LhO4Aw A copy of the action items and notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Action Items Question - avri doria: is Jorge question a Legal staff question or a Board question? Support to ask this question to ICANN Legal · ACTION ITEM for Staff to ask this question of ICANN Legal Notes 1. Administrivia Role call to be made from the logs Agenda no changes proposed Note comment - Kavouss Arasteh: Pls kindly consider my suggestion made at last meeting i.e. whenever we quote a text from Bylaws in second column, in third column ,if there is no comment to the quoted text we should indicate no interpretation is required 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI: Members of the drafting team asked to provide comments on the draft: Greg provide a summary and noted the forth column that was added of newly suggested text added by the group. Includes both commentary and discussion, some of the text has ot been entirely discussed but is still a working progress. Fourth column is more logistical than substantive. Noted Jorge Cancio (GAC Switzerland): the doc on screen is not the last one - it does not include my comments and contributions of today Latest document located at: Tatiana Tropina: https://docs.google.com/document/d/1XFmkzSFh4CuVR7uWWh6-ZUNii4iVd-jQwx9eZ01…<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume…> a.‘within the scope of its Mission’ Greg read the text from "within the scope of its Mission" Question raised by Jorge regarding the text on the screen reflect the changes as of yesterday evening but they do not include the other work that was included today. Appears to be going towards consensus on this section Kavouss Question raised on where the text originated from - the new bylaws or from where? In particular kin the fourth column and should not deviate from the bylaws. Greg - Response as a general matter this in interpretative guidance and need t move beyond the actual guidance of the text to a context of a framework that is value neutral in approaching the topic. Question - Tatiana Tropina: No, I just wanted to ask - Kavouss do you want to replace "consider" with "respect"? I don't have a problem with this. I think we can do so. This is the product of the drafting team and their consideration of the materials and their thoughts. Comments from Kavouss Arasteh: Greg I do not agree with your argument that we interpret "Respect" meaning " consider" Response Tatiana Tropina: Kavouss, we will analyze your comment. I made a note in the document. The drafting team will consider alternatives when continuing its work on the draft and will look to try an be clear with regarding to what ICANN is doing. b.‘within the scope of other Core Values’ Greg introduced the core value section, this is where we get to the point of human rights as a core value, and it needs to be applied through interpretive rules with all the core values and commitments. its still a work in progress. Do have balancing test requirement here and that they is no hierarchy among the core values. Important that the text be clear. Jorge comment - text agreed to by the drafting team more or less - however will benefit from overview by ICANN Legal on core values and the balancing text but on the question between commitment and core values in the Mission part of the bylaws. Relationship shold be consistent between core values and commitment. No document that explains the approach to managing core values and commitments. Comments Tatiana Tropina: agree with Greg and the balancing issue with the core values Jorge - Noted question to be asked of ICANN Legal - will provide in chat Jorge Cancio (GAC Switzerland): question for ICANN Legal: what is their approach on the relationship between commitments and core values in general; and the HR core value and commitments in particular. Question - avri doria: is Jorge question a Legal staff question or a Board question? Support to ask this question to ICANN Legal ACTION ITEM for Staff to ask this question of ICANN Legal It was noted - Kavouss Arasteh: What does worry me is that we modify the Bylaws through this interpretation where as we need to maintain the Bylaw and provide clarification and further exploring the initial text Note more work may be required on balancing test c.‘respecting’ Tatiana - comment on red n=highlight in the document, text and thoughts are quire long and still disagreement in the drafting team on the draft text. If considered negative obligations and ICANN would not have any actions to take to respect human rights, is positive obligations in policy and decision making processes includes core values intended to guide ICANN in its decision making. It was proposed that the text cold be combined to contain both positive and negative approaches. It was noted - Brett Schaefer: Tatiana, the bylaw says that HR creates no obligation. Why are we discussing positive and negative obligations? Jorge - comments, as you can see still disagreement within the drafting group and the way the ideas are expressed. Agreement in the notion that respecting Human Rights has both positive and negative sides. Respecting in positive light provides. It was noted that the Ruggie Principles are relevant to the framework of interpretation as there are lots of places where these principles have been supported. Suggestions on text in the fourth column, happy to work with other members on text for this column beyong the small group working on the drafting Comments on the text provided - Kavouss Arasteh: Para. 1.2 viii has been combined with para. 1.2 c and made a mixture of up - not interpretation Greg - comment - lost of discussion in the chat this is why its important to figure out what is meant by applicable law. This is a key to the bylaw the way its is drafted. Hope to avoid loop holes or fuzzy language. Neils - Point raised regarding Ruggie and why expliced denouncement of Ruggie is noted. Jorge Cancio (GAC Switzerland): Well I do not agree with "denouncing" the UNGP... as may be clear by now... Kavouss Arasteh: some people were categorically against use of Ruggy principles''' Greg - not a compliance test Neils - need to understand why its noted that Ruggie is applicable of not, could use it to address respect Tatiana Tropina noted that many voices to consider when applying Ruggie and the groups needs to look at alternative approaches, specifically with respect Neils need to consider different places to obtain definitions of respect Brettt - confused by discussing on obligations that are broader than what has been laid out by the Mission and applicable law d. ‘internationally recognized human rights’ Drafting team overview of the section -Tatiana related to the ICANN core vlaue and instruments create obligations for states scope of national law can be very broad. This should not be read in isolisation and should be read with applicable law. Depending on the jurisdiction in which ICANN operates may impact the applicable Human Rights that are applied Noted - Kavouss Arasteh: if everybody is in favour of saying international convention (s) have been drafted for obligatory application for states and thus do not address ICANN concerns, just plainly and clearly say that and put it to public comment and see reactionsa e. ‘as required by applicable law’ f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission’ g. ‘or beyond obligations found in applicable law’ h. ‘or the human rights obligations of other parties, against other parties’ 3. AOB

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Proposed agenda meeting October 25 - 19:00 UTC
by Niels ten Oever Oct. 25, 2016

Oct. 25, 2016

Dear all, I hope this email finds you well. Please find underneath and attached the proposed agenda. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI a.‘within the scope of its Mission’ b.‘within the scope of other Core Values’ c.‘respecting’ d. ‘internationally recognized human rights’ e. ‘as required by applicable law’ f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission’ g. ‘or beyond obligations found in applicable law’ h. ‘or the human rights obligations of other parties, against other parties’ 3. AOB Please find also attached the current version of the working document. The drafting team has (mostly) been using the fourth column for their most recent iteration for a proposed text, which helps keeping the document readable. You can find the most recent version of the document here: https://docs.google.com/document/d/1XFmkzSFh4CuVR7uWWh6-ZUNii4iVd-jQwx9eZ01… Thanks again to the drafting team for their work. Comments and suggestions are welcome as always. Looking forward to the call. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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CCWG WS2 HR SG report
by Niels ten Oever Oct. 23, 2016

Oct. 23, 2016

Dear co-chairs, Please find underneath the report for the Human Rights Subteam. Please let me know if you have any questions or suggestions. Best, Niels 1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report [0] (especially Annex 6 [1] and 12 [2]) form the scope of the groups discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion. 2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started with producing an overview of the discussions and agreements as they were made during CCWG Work Stream 1 [3]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in the subgroups weekly calls. Main focus points of discussions up to now have been the definition and understanding of 'applicable law' as well as the definition and understanding of the concept of 'respecting human rights'. Areas of concrete progress have been the joint development of a structure for the Framework of Interpretation, as well as its limited scope. The Framework of Interpretation should not be confused with a Framework of Implementation. The Framework of Interpretation should be limited to explaining the concepts in the bylaw and guide its interpretation. Although no consensus has yet emerged on any of the key topics, and none were expected quickly given the nature and complexity of the issues being considered, it is expected, that at this rate, the subgroup will be able to achieve the set milestones. 2.2 Supplemental Report See [3] 3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet. 3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet. [0] CCWG report https://community.icann.org/download/attachments/58723827/Main%20Report%20-… [1] Annex 6 https://community.icann.org/download/attachments/58723827/Annex%2006%20-%20… [2] Annex 12 https://community.icann.org/download/attachments/58723827/Annex%2012%20-%20… [3] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNM… -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Re: [Ws2-hr] Report to CCWG
by Rudolph Daniel Oct. 20, 2016

Oct. 20, 2016

And I'd like to add this link on 'applicable law' a definition https://definedterm.com/applicable_law RD On Oct 19, 2016 7:28 PM, "Nigel Roberts" <nigel(a)channelisles.net> wrote: For the avoidance of doubt, I don't think that Paul and I are on the same page. But that notwithstanding, I pretty much concur with Erich's comment. On 19/10/16 23:32, Schweighofer Erich wrote: > I agree with this analysis of Paul McGrady and Nigel Roberts. > ICANN has to respect laws in the countries it is operating. Human rights > standards differ and it is not the obligation of ICANN to enforce these. > This is the role of human rights bodies. > BUT: ICANN is operating also at the international level (as some sui > generis organisation) and as such it has accepted to respect international > human rights law (e.g. the Universal Declaration on Human Rights, the human > right conventions, without any reservations, with a sufficiently strong > ratification status, e.g. more than 80 countries etc.). ICANN has also to > respect regional human rights law (e.g. European Convention on Human > Rights, American Convention on Human Rights) and other instruments like the > Cairo Declaration on Human Rights in Islam (CDHRI). > Thus: ICANN as an organisation respects human rights, maybe also in some > ethical version (like the "Ruggie Principles", but I remain sceptical). As > long as local jurisdictions respect ICANN's autonomy, it is fine. > Otherwise, local jurisdiction superposes ICANN's obligations. ICANN may > report to human rights bodies and they have to take on this issue. > > Best regards, Erich Schweighofer > > -----Ursprüngliche Nachricht----- > Von: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] Im > Auftrag von Paul McGrady > _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

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Re: [Ws2-hr] Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 10 | 18 October
by MSSI Secretariat Oct. 19, 2016

Oct. 19, 2016

Hello all, Please see the revised notes for the CCWG Accountability WS2 Human Rights Subgroup Meeting #10 here; https://community.icann.org/x/5xC4Aw The revised notes are also listed below. Thank you! Brenda Notes Human Rights Meeting #10 (18 October @ 19:00 UTC) Notes (including relevant parts of chat): 21 participants at beginning of call. 1. Administrivia - Roll call, absentees, SoIs, etc Niels ten Oever: Nothing to report from attendees. No changes to the agenda. I have produced a draft update report for the CCWG and have distributed to this group for comments. David McAuley: Ruggie 13A we are not of one mind of what “address” means. Niels ten Oever: was not trying to present it as such. If you have edits please propose them. Also anyone if welcome to propose edits. Kavous Arasteh: Would kindly ask English speakers to speak slowly so non-English speakers can properly understand those comments. Jorge Cancio (GAC Switzerland): good point from Kavouss - especially late at night it is sometimes difficult to follow native speakers :-) 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI a. within the scope of its Mission Greg Shatan: We have simply imported the relevant parts of the mission as we did not believe there was a need for additional interpretation as this is essentially self-explanatory. Tatiana Tropina: Support GS. Jorge Cancio: Support and remind all it is critical that we are bound by the mission. Kavous Arasteh: While nothing wrong with that quotation, I wonder whether we need that as it is not any interpretation? Brett Schaefer: After reading through the document, I think it would be extremely helpful if we could delete parts of the text that everyone has moved on from and provide a summary of comments/arguments with attribution. The current document has too much comment repletion and edited text to be readily accessible. Tatiana Tropina: Brett, I agree. Four columns and old text is really confusing. We can create a cleaner clone and save this one for the record. John Laprise: +1 Jorge Cancio (GAC Switzerland): Agree with Brett that the text is still difficult. Rapporteur and/or staff could do a bit more of cleaning. Tatiana Tropina: We may not need to have the Bylaws text in the document (– we could consider simply inserting text that states that every case wrt Human Rights consideration vs ICANN activities and policy making has to be checked or tested for mission limitations. Cheryl Langdon-Orr (CLO): cleaner version would be appreciated yes please links to the bylaw secions makes sense, but this doc is early version so I thank you all for this Tatiana Tropina: agree. Kavouss Arasteh: (poor audio) whenever we quote bylaws, mission etc. in left hand column – on the right hand side if there is no interpretation is required we simply insert this “no interpretation required”. Tatiana Tropina: We will certainly look at that. Thanks Kavouss. b. within the scope of other Core Values Greg Shatan: In contrast to the mission limitation it was felt that the Core Values statement did require interpretation. There is text about how to use the balancing test/guide. This was not agreed by all in the drafting team. Core values are more complex than the mission. We then quote the remaining Core Values. So this is a framework of interpretation. We can look at not quoting these once we complete the document given that at that point links may be sufficient. Tatiana Tropina: I strongly support Greg's position. The core values are defined in the bylaws and it's hard to say that they are not what they are. Nigel Roberts: Have a successful meeting. I have to leave now. Jorge Cancio: There is common ground with GS here. I have been asking this group to request from ICANN legal how they intend to manage the balancing test for this Core Value. It would be important to have that response for several reasons – mainly that the framework of interpretation must consider all the Core Values as well as the Mission. As such before making any interpretation of the HR Core Value we need to have the opinion from ICANN Legal and how they propose to help the Board apply this. This being said there were some points I could not agree with GS given the text seemed to diminish the HR Core Value. Another point at issue – there is no hierarchy of Core Values and saying they are all equal may be premature. However, agree that a Core Value is different than a commitment and needs a balancing test. Anne Aikman-Scalese (IPC): There was a response from ICANN legal. It arrived just prior to one of our calls There was specific language from ICANN Legal as to this ByLaw. Karen Mulberry: This was sent by ICANN Legal on 20 Sept in response to a HR request. Dear HR-Subgroup members,I understand that the question posed was "'What is the rationale for the addition of 'core values' to the ICANN bylaws, and what are its legal and non-legal implications in your opinion, especially for the human rights bylaw?”The Core Values have historically been part of the ICANN Bylaws, introduced after the ICANN evolution and reform effort in 2002,https://www.icann.org/en/about/governance/bylaws/bylaws-15dec02-en.htm. From 2002 through the Bylaws as they exist today, the Core Values remained unchanged, with the following as guidance for the application of Core Values: "These core values are deliberately expressed in very general terms, so that they may provide useful and relevant guidance in the broadest possible range of circumstances. Because they are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors. the statement - With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other.The inclusion of the Human Rights commitment as a Core Value, which was expressly required in Annex 6 of the WS1 report, assures that it is an item that is considered while ICANN is performing its Mission. The implication of this is strong, particularly where the FOI considers how to guide the interpretation of this obligation. Of course, there are already legal obligations that are tethered to human rights obligations (for example, observing laws against human trafficking) that ICANN is already following. Given the long-standing nature of the Core Values section of the ICANN Bylaw Anne Aikman-Scalese (IPC): Agree with balancing test. The balancing also needs to be consistent with ICANN existing processes. So, for example, there is a balancing that goes on with respect to PDP work. Tatiana Tropina: I support GS position. When I look at the ICANN Legal reply – I strongly disagree that some Core Values are more important than others. I have no issue with asking ICANN Legal for more information but it should not be the same question. We should be seeking guidance on the application of these Core Values. Core Values are not the same as Commitments and the interpretation of Core Values will require some flexibility which will depend on many factors which may be active at the time there is a requirement to interpret. To me Core Values look to be rather self-explanatory the only thing that is needed is some guidance wrt their application. Jorge Cancio (GAC Switzerland): To sum up - I feel we have common ground on what it means that the Human Rights is a core value here - but the devil is in the details and some rather absolute characterizations of the HR Core Value. Kavous Arasteh: Do agree there is a difference between Core Values. Do not agree we should seek views of legal but we should not seek advice, views yes, but not advice. Should not state that the Core Values cannot be applied consistently. Jorge Cancio (GAC Switzerland): and we need to have clarity on the general relationship between commitments and core values, a question that goes beyond the Human Rights Core Value - and a consistent approach would surely be needed for all core values and commitments, not just the Human Rights one Greg Shatan: I agree in part with KA, There is no hierarchy in the Core Values and they have to be interpreted on a case by case basis. Kavous Arasteh: (audio issues). Just take out the square brackets. Tijani Ben Jemaa: glad we are progressing well. I completely agree with the Mission and Core Values text and support what GS has said. Greg Shatan: I think it's important to see the Core Values in the larger context, especially since Commitments and Core Values are subparts of the same section. Jorge Cancio (GAC Switzerland): agree, Greg. But this is not specific to the HR FoI... but a general question about core values and commitments. Brett Schaefer: Just to clarify, the balancing is between the different Core Values only? It is clear and agreed that the Core Values are secondary to Commitments and can under no circumstances violate the Mission? I ask because it is not clear that that is the case based on the reading and discussion Jorge Cancio (GAC Switzerland): I think that is the case, Brett Brett Schaefer: I am not sure how helpful the ICANN legal contribution (higher in the chat) is considering this statement: "Because they [core values] are not narrowly prescriptive, the specific way in which they apply, individually and collectively, to each new situation will necessarily depend on many factors" Avri Doria: I have trouble understanding how any core principle can trump human rights. but maybe in time i can understand something like that. stranger things have happened. Brett Schaefer: Seems like we are trying to define something ICANN sees as very malleable. c. Respecting Tatiana Tropina: This is one of the more controversial issues for the drafting group. We believe the Bylaws use the term Respect to be in contrast to the Enforcement of Human Rights. It remains unclear if the Ruggie Principles can be the only reference. Jorge Cancio: There is a lot of common ground and we are not so far apart. We are in agreement on the parameters of the Bylaws text to guide Respect. We also agree that ICANN will not enforce Human Rights. We also agree that the Ruggie Principles are an important source. The main area of contention is that I do not believe that Respect can only mean not violating – that would be an overly restrictive interpretation – It would be like saying we abstain from violating Human Rights. It is important to note that the Ruggie Principles do not have enforcement requirements for business partners – only moral obligations. For me respect has both a negative interpretation of not violating or infringing but also a positive interpretation of adjusting and promoting your activities in a way that is Human Rights conscious and our interpretation should cover both. Avri Doria: accepting UNGP as a source is quite a step forward. perhaps not enough, but something Tatiana Tropina: I suggested to convert "abstaining" into the positive interpretation "taking into consideration in the policy making etc." Niels ten Oever: Excellent Tatiana Tropina: but that shall be balanced with core values and with mission Tatiana Tropina: I can suggest the text for the next meeting Lee Hibbard: the point is that the UNGPs sets out the standard of expectations with regard to human rights. This expectation extends to ICANN to the extent that it can be considered as an economic actor, just like it extends to an organization like FIFA, it is reasonable to expect that ICANN is a major economic actor and that it seeks to avoid doing harm to human rights in its activities and through its business relationships Tatiana Tropina: something like Tatiana Tropina: “taking into account the necessity to balance the Human Rights core value with other core values, ICANN should take into account human rights in developing its policies and in decision-making processes”. Very rough thought. Kavous Arasteh: Ruggie Principles – We should say that we have considered various sources including the Ruggie Principles but these are not applicable wholesale to ICANN. But we could say that these are applicable under specified conditions. David McAuley: I am concerned about comments regarding mitigating Human Rights issues. Bastiaan Goslings: It’s an interesting almost philosophical discussion about ‘respecting’ in the google-doc, and I do not want to be a party pooper Anne Aikman-Scalese (IPC): I think respecting means we will in fact perform the balancing act we have all been discussing. Brett Schaefer: +1 David, mitigating or addressing implies ICANN would action. This goes against the text of the draft bylaw. Bastiaan Goslings: But I wonder, when looking at the Human Rights core value, whether the ‘respecting’ can be separated from the ‘as required by’ as currently is done in the google doc… KAVOUSS ARASTEH: Niels, What I said was, first of all we need an opening part to the use or otherwise of Ruggie Principle saying that the group has examined various sopurtce, among which was Ruggie Principle and concluded that not all those principles totally apply Greg Shatan: We have been clear that we should not try to implement all the Ruggie principles as is. Niels ten Oever: Making great progress. Awaiting response from ICANN legal re Applicable Law. Would encourage everyone who has concrete comments please email these to the list or include these directly in the Google doc. Adjourned. From: <accountability-cross-community-bounces(a)icann.org> on behalf of MSSI Secretariat <mssi-secretariat(a)icann.org> Date: Tuesday, October 18, 2016 at 4:47 PM To: CCWG Accountability <accountability-cross-community(a)icann.org> Cc: "ws2-hr(a)icann.org" <ws2-hr(a)icann.org> Subject: [CCWG-ACCT] Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 10 | 18 October Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #10 – 18 October 2016 will be available here: https://community.icann.org/x/5xC4Aw[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_x_…> A copy of the action items and notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes 1. Administrivia Roll call, absentees, SoIs, etc No updates for SOI, draft agenda adopted Niels - Short report sent to the list to meet the 21 Oct date for the Co-Chairs 1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion. 2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones. 2.2 Supplemental Report See [0] 3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet. 3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet. [0] https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume… Comments on draft text should be submitted to the list 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI a. within the scope of its Mission b. within the scope of other Core Values c. respecting d. internationally recognized human rights e. as required by applicable law Presentation and discussion of the work of the drafting team by team members. Greg Shatan walked the group through the document starting with the Mission, seems that the Mission section may not need any further interpretation at this time. Agree that Mission covers core values. It was noted that it may not be necessary to quote the bylaw. Discussing the general framework of the core values and how they work within the bylaws, in particular for human rights aspect. Requesting ICANN Legal opinion on relationship between core values. Noted the response from ICANN Legal on 20 Sept. on core values. With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other. Suggestion to remove the square brackets in the text as they are not needed. Discussion of how to move forward based on the discussion of the draft from the drafting team. Do have some parameters that the group is in agreement. Agree that the Ruggie Principals are a source to be used. In particular the notion of respectfulness Suggestion that the group add some background to the text to explain. No intention to create and automatic application of the Ruggie Principals, in particular application as to respect. 3. AOB Documents Presented · Presentation Meeting 9.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_do…> · NewdocumentFoIWG.pdf[community.icann.org]<https://urldefense.proofpoint.com/v2/url?u=https-3A__community.icann.org_do…>

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 10 | 18 October
by MSSI Secretariat Oct. 19, 2016

Oct. 19, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #10 – 18 October 2016 will be available here: https://community.icann.org/x/5xC4Aw A copy of the action items and notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Notes 1. Administrivia Roll call, absentees, SoIs, etc No updates for SOI, draft agenda adopted Niels - Short report sent to the list to meet the 21 Oct date for the Co-Chairs 1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion. 2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones. 2.2 Supplemental Report See [0] 3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet. 3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet. [0] https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_docume… Comments on draft text should be submitted to the list 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI a. within the scope of its Mission b. within the scope of other Core Values c. respecting d. internationally recognized human rights e. as required by applicable law Presentation and discussion of the work of the drafting team by team members. Greg Shatan walked the group through the document starting with the Mission, seems that the Mission section may not need any further interpretation at this time. Agree that Mission covers core values. It was noted that it may not be necessary to quote the bylaw. Discussing the general framework of the core values and how they work within the bylaws, in particular for human rights aspect. Requesting ICANN Legal opinion on relationship between core values. Noted the response from ICANN Legal on 20 Sept. on core values. With the Bylaws drafted to implement WS1, the CCWG recommended the development of both Commitments as well as Core Values, for which the balancing test has changed. Some of the items that were previously Core Values are now expressed as commitments. The balancing test now requires that all of the commitments be met, while Core Values still are dependent upon situations and can be balanced amongst each other. Suggestion to remove the square brackets in the text as they are not needed. Discussion of how to move forward based on the discussion of the draft from the drafting team. Do have some parameters that the group is in agreement. Agree that the Ruggie Principals are a source to be used. In particular the notion of respectfulness Suggestion that the group add some background to the text to explain. No intention to create and automatic application of the Ruggie Principals, in particular application as to respect. 3. AOB Documents Presented · Presentation Meeting 9.pdf<https://community.icann.org/download/attachments/62394599/Presentation%20Me…> · NewdocumentFoIWG.pdf<https://community.icann.org/download/attachments/62394599/NewdocumentFoIWG.…>

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Proposed agenda meeting October 18 - 19:00 UTC
by Niels ten Oever Oct. 17, 2016

Oct. 17, 2016

Dear all, I hope this email finds you well. Please find underneath and attached the proposed agenda. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI a.‘within the scope of its Mission’ b.‘within the scope of other Core Values’ c.‘respecting’ d. ‘internationally recognized human rights’ e. ‘as required by applicable law’ 3. AOB Please find also attached the current version of the working document. The drafting team is still working on the document, so I will send an updated version tomorrow. You can find the most recent version here: https://docs.google.com/document/d/1XFmkzSFh4CuVR7uWWh6-ZUNii4iVd-jQwx9eZ01… The document is cleaned up and should be much easier to follow. The first column indicated the concept for which a framework of interpretation is offered. The second column is the Proposed Commentary that is currently under discussion (excluding bracketed text) The third column is the discussion column with expansions, bracketed text and discussions on and of the Proposed Commentary in the second column. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 9 | 11 October
by MSSI Secretariat Oct. 11, 2016

Oct. 11, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #9 – 11 October 2016 will be available here: https://community.icann.org/x/cwi4Aw A copy of the action items and notes may be found below. Thank you. With kind regards, Brenda Brewer MSSI Projects & Operations Assistant ICANN - Internet Corporation for Assigned Names and Numbers Action Items: · Staff to contact ICANN legal regarding their interpretation of applicable law and their comments on the sub-group’s proposed definition. · Staff to post transcript of last call of sub-group as soon as possible. Notes Notes (including relevant parts of chat): 1. Administrivia, Roll call, absentees, SoIs, etc 2. Discussion on Working Methods · Niels ten Oever: Google Document is messy but is a testament to the work going on. · Tatiana Tropina: Leave the Google doc as a main drafting tool and then hold a Skype (or other) call and take notes and then go back to the document. · Greg Shatan: Google doc is being stretched but still think it is a good tool for us. Maybe just need to manage our inputs better using the various functions available. Everyone should work in Suggestion mode. · Tatiana Tropina: Wiki no please not for this task. · Rudi Daniel: yes, so far Google docs works as well as a tool. · Tijamni Ben Jemaa: Google docs is not usable everywhere in the world. Experience using the Wiki was better (audio cutting out). · Tatiana Tropina: (sorry for being so direct, I just can't use wiki for this type of drafting). · Niels ten Oever: Have checked with ICANN staff and there are currently no additional tools available for this in the Wiki at this time. · Kavous Arasteh: Not in support of Google docs. Difficult to use. Many of the comments in the Google doc are not useful. · Stefania Milan: It seems to me that Greg's proposal to accept minor editorial changes, and especially to create historical versions, is very logical and easy to implement · Cheryl Langdon-Orr (CLO): I support the wiki as archive and connections to various more collaborative tools though · Avri Doria: any confusion in the drive doc is due to confusion in the group, not a tool problem. yes, wiki is good storage and archival tool. 3. Analysis and discussion of proposed definition of applicable law · David McAuley: I have provided my input on Applicable Law and then have provided a boiled down version. Applicable Law is discernable if there is a question on the floor but not if there is not. · Matthew Shears: David - your suggestions were very helpful · Nigel Roberts: I disagree with that definition. The term would be construed strictly by any court interpreting the by law. · Kavous Arasteh: Recommend people should comment on the written document in writing on the list. · Nigel Roberts: Human rights law only applies to public actors UNLESS we voluntarily adopt particular instruments. · Tatiana Tropina: Nigel it can be also some other laws, not only HR + HR is for the states, but it gets translated to the laws and regulations, I can come up with many examples how it is translated in the national law and binds any actors. · Nigel Roberts: There is no applicable HR law to ICANN unless we voluntary adopt parts of things like Ruggie. · Rudi Daniel: This definition makes more sense IMO.....Applicable law is a specific concept of private international law and refers to the national law that governs a given question of law in an international context. A court hearing an action does not necessarily apply its national law to settle the dispute. · Greg Shatan: There are laws that apply to entities and individuals via the state wrt HR. · Nigel Roberts: Human rights law only applies to public actors UNLESS we voluntarily adopt particular instruments. · Tatiana Tropina: There is no applicable HR law, but there many laws that contain the elements related to HR. Criminal prohibition on slavery is one of the obvious examples. · David McAuley (RySG): I stand by my thoughts in my longer and shorter emails - I also think HR principles work their way into laws that apply to ICANN and I think the twice reference in the bylaw makes this important. · Nigel Roberts: What applicable law applies to ICANN in the matter of free expression? The First Amendment doesn't · Matthew shears: + 1 Tatiana, Greg and David · Tatiana Tropina: Nigel, you want ICANN to create this law on it's own? Or create its own rules on FOE that it will be enforcing? It directly contradicts the bylaw · Niels ten Oever 2: @greg - that seems out of scope, or at least outside of our capacity. · Jorge Cancio: thanks to DM. This is a good basis but have some concerns wrt NR has raised. Would be good to compare our definition vs the definition of ICANN legal. · David McAuley (RySG): putting bylaw language aside for a moment, what would apply? Hard to ask as the bylaws language is what it is. · Nigel Roberts: I wish people would actually read the remarks of the learned judge in .XXX v ICANN IRP. · Tatiana Tropina: I lowered my hand, because Greg said everything I wanted to say. The onlt thing I would still like to reiterate is my thanks to David. This definition suggested by him reflects the scope of the term and the changing nature of laws and regulations. · Nigel Roberts: Nothing applies by default. Agree that the core value is very important · David McAuley (RySG): I think ICANN's commitment to respect HR is significant · Avri Doria: I thought the commitment was meant to be empty from the beginning. certainly was always an empty phrase. · Greg Shatan: Applicable law is not that malleable and elusive. · Chris LaHatte: if nothing applies by default then we reach consensus on what we want, that seems logic · Nigel Roberts: It BECOMES applicable when ICANN voluntarily agrees to it. · Tatiana Tropina: I disagree · Greg Shatan: That's not how applicable law works. · Nigel Roberts: Anything else is domestic black letter law. · Greg Shatan: Or the law generally. Applicable law is the law that ICANN is subject to. · Nigel Roberts: Exactly, Greg. California law, for example. · Erich Schweighofer: Applicable law is a reality, different according to the jurisdiction. Human rights are determined by the applicable law that should comply with the international human rights obligations of the respective jurisdiction. · Nigel Roberts: Turkish law for example. · John Laprise: agreed · David McAuley (RySG): Thanks Niels - think it would be good to hear from ICANN legal on this · Tatiana Tropina: Agree about ICANN legal · Greg Shatan: Turkish law only applies in limited circumstances. I would assume only to actions taken in Turkey. · Nigel Roberts: Probably. · Matthew Shears: good then we are all on the same page · Nigel Roberts: Point I was making is that many jurisdictions' law is applicable law where ICANN's actions have an effect in that jurisdiction. I could just as easily have said Belgian law, or DC law - all places where ICANN has offices and staff · Kavous Arasteh: Voluntary or mandatory is the key - · Niels ten Oever: We should move this to the list. Please read and comment. 4. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI · Niels ten Oever: Let us go through this part by part and let us not do any wordsmithing. · Jorge Cancio (GAC Switzerland) 2: +1 Avri - there is however a principle in law (at least in continental Europe) that a provision has to be construed so as to give it a purpose, a meaning... · Nigel Roberts: Jorge - i totally agree - but don't expect ICANN to take a teleological view · Greg Shatan: This is a draft document at this point. Taking Ruggie as is, is not what should be done. · Avri doria: Ruggie should be seen and an integral piece, either we take all of it or walk away from it. · Matthew shears: I think we can find guidance in Ruggie at this stage. · Tatiana Tropina: I agree with Avri in general - they are integral piece and we shall use them as inspiration, but they are so much about implementation that it's impossible to use them as a piece · Matthew Shears: agree - the implementation is far beyond our mandate · David McAuley (RySG): Agree w Tatiana · Avri Doria: I am becoming convinced that it is an empty mandate. · Nigel Roberts: Can I propose, please, that we reiew secetion 58 of ICM Registry v ICANN please?? This deals with applicable international law. " ICANN voluntarily subjected itself to these general principles in its Articles of Incorporation, something that both California law permits and that is typical in international arbitrations, especially when public goods are at stake. " · Mathew Shears: Our mandate is to take this back what is required. The problem with Ruggie is that is goes into implementation which is beyond our mandate but we can be inspired by it. I don't think we have hashed out the various parts to go through it in detail · Niels ten Oever 2: @TT - Not in detail, high level, to see where the thinking is going. And so we can profit from the ideas from people out side of the drafting team. · Lee Hibbard: have been following the last calls closely. Ruggie is a starting point for ICANN but should not be the only one. Council of Europe (where I work) will release shortly a document about the HR implications of many TLDs. We need to mindful of HR principles but we should not go into implementation. · Jorge Cancio: I agree with MS - Ruggie is good for guidance but they are not the right level vs WS1 recommendations. The drafters have been working intensively for the last 3 or 4 days. There is much common ground on general topics if not on specific wording. We all agree that the mission is a core boundary……. · Kavouss Arasteh: Jorge, these are already known and we need not to repeat them again · Brett Schaefer: Sorry, but we seem to be going in circles. Aside for applicable law, which has been clarified to some extent, this conversation is just reiterating what we discussed in the last few calls. We still do not seem any closer to defining respect for human rights, etc. · Avri Doria: I do not see any room for proposals as long as we are stuck with existing law. we are already covered by that and it adds nothing. · Brett Schaefer: Matthew and Tatiana, sorry, I don't see the progress. The same fundamental disagreements remain unresolved. · Tatiana Tropina: I didn't expect them to be resolved in one week. · Erich Schweighofer: There is applicable law and international human rights law (HRC, ECtHR etc.). ICANN has to position itself in this network. Neutral, supportive (Ruggie) or laissez-faire (States). · Tatiana Tropina: But I appreciate your feedback :) we will try harder :) · Nigel Roberts: Please refer ICM Registry v ICANN · Matthew Shears: Brett feel free to make suggestions · Avri Doria: WS1 did not work out because people want the fig leaf of HR, without any commitment to HR. that is now quite obvious. · Niels ten Oever: Staff to ask ICANN legal for their interpretation of applicable law and comment on our draft one. Work on the drafting team should continue and new members are welcome to join. · Brett Schaefer: I have, they have been rejected. Part of the disagreements I mentioned. We need to narrow our focus to rights likely to be related to ICANN's work and clarify what ICANN's responsibilities are. But that would be "cherry picking". · Niels ten Oever 2: @Brett - we have been having a list of documents for quite a while. · Greg Shatan: We should not be cherry picking. Unfortunate the transcript of the last meeting has not been posted on the Wiki. Agree with BS. Until we get past simply applying Ruggie completely we will never progress. · Avri Doria: I find the blockage to existing law unhelpful. existing law adds NOTHING new. · John Laprise: +1 Avri · Cheryl Langdon-Orr (CLO): agree Avri · Chris LaHatte: Ruggie etc are a guide so we choose what we want · Greg Shatan: Ruggie cannot be the only guidance. It's like going to a city and told there is only one guidebook. · Niels ten Oever: We have reached the end of the call. Looking forward to continuing the discussion online. Adjourned.

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Proposed agenda + documents meeting October 11 - 19:00 UTC
by Niels ten Oever Oct. 11, 2016

Oct. 11, 2016

Dear all, I hope this email finds you well. Please find underneath the proposed agenda for the call of our subgroup on 11 October 19:00 UTC. Please find also attached the proposed slides as well as the document the Drafting Team consisting of Greg, Tatiana, Matt and Jorge, have been working on this week. You can also find that document here: https://docs.google.com/document/d/1XFmkzSFh4CuVR7uWWh6-ZUNii4iVd-jQwx9eZ01… All your comments and suggestions are of course very welcome. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis and discussion of proposed definition of applicable law by David McAuley 3. Analysis and discussion on new draft FoI document produced by Drafting Team 4. AOB I'm greatly looking forward to see you all on the call. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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