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

Proposed agenda meeting November 22 - 19:00 UTC
by Niels ten Oever Dec. 2, 2016

Dec. 2, 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 1st reading continued f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission or beyond obligations found in applicable law’ g. ‘‘This Core Value does not obligate ICANN to enforce its human rights obligations or the human rights obligations of other parties, against other parties’ 2nd reading a.‘within the scope of its Mission’ b.‘within the scope of other Core Values’ (with minor changes as per discussion last week) 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. It can also be found here: https://docs.google.com/document/d/1ZJ02NHeKt9krBGd9V4q54_gl_RPcWGA9d8-WuV_… I hope that the people who brought up issues with the text under 'b.‘within the scope of other Core Values’' can check whether the current text works according to their suggestions, same with 'c.‘respecting’'. If not, it would be highly appreciated if people could suggest new text either on the google doc or on this list. All the 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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Co-Rapporteur stepping down
by Niels ten Oever Nov. 30, 2016

Nov. 30, 2016

Dear all, With sadness I am forwarding you the message I've received from Nigel underneath. Please join me in thanking Nigel for the work he has done for the subgroup as co-rapporteur. Luckily we can still benefit from his contributions as a participants in this subgroup. Best, Niels---------- Forwarded message ---------- From: Nigel Roberts <nigel(a)channelisles.net> Date: 29 Nov 2016 15:04 Subject: WS HR Group To: Niels ten Oever <lists(a)nielstenoever.net> Cc: > Administrative .. > > It's with a sense of regret and inevitability that I hereby notify you > that I have to step down from co-rapporteurship of the group. > > Whilst I am very happy to continue as a participant, and provide written > input, I have keenly felt the obligation to attend the teleconferences > which have been a big time constraint coupled with my work and personal > obligations. > > Taking this action will allow me to concentrate on content over the form > of meeting attendance. > > I trust you understand. > > If you need any help, however, please don't hesitate to ask. > > Kind regards > > > > N > > PS: Please feel free to forward this to the list . . > > > > > On 25/11/16 11:47, Niels ten Oever wrote: > > Dear all, > > > > With ICANN staff I have been trying to arrange our meeting days for the > > coming time. Unfortunately we were not able to secure our normal meeting > > date for next week, so next week we will be meeting on Friday December 2 > > 1900 UTC. > > > > For most of the other days we have been able to secure our default > > Tuesday 1900 UTC, sorry for the inconvenience. > > > > Invites will be sent out by staff on Monday. > > > > I hope you're all having a great weekend. > > > > Best, > > > > Niels > >

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Meeting next week on Friday instead of Tuesday (19:00 UTC)
by Niels ten Oever Nov. 25, 2016

Nov. 25, 2016

Dear all, With ICANN staff I have been trying to arrange our meeting days for the coming time. Unfortunately we were not able to secure our normal meeting date for next week, so next week we will be meeting on Friday December 2 1900 UTC. For most of the other days we have been able to secure our default Tuesday 1900 UTC, sorry for the inconvenience. Invites will be sent out by staff on Monday. I hope you're all having a great weekend. 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 # 13 | 22 November
by MSSI Secretariat Nov. 23, 2016

Nov. 23, 2016

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #13 here; https://community.icann.org/x/lI7DAw 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 · ACTION (David McAuley): have the questions being distributed to our list, just to keeping track of themAction Items · ACTION (Drafting team) come up with new proposal for 2nd reading. · ACTION (drafting team): come up with new proposal Notes 1. Administrivia | Roll call, absentees, SoIs, etc. · No audio only. · No SOI updates · No updates to agenda · Legal questions now submitted to ICANN Legal ACTION (David McAuley): have the questions being distributed to our list, just to keeping track of them 2. Analysis and discussion on the progress of the drafting team working on the new proposal for FoI 1st reading continued f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission or beyond obligations found in applicable law’ * Avri: The interpretation here seems stronger than the initial text. * Greg: I don't see that as stronger. * Jorge Cancio (GAC Switzerland): this sentence is about "obligations" - it does not prevent ICANN from "taking HR into account" beyond that * Group approves this interpretation. g. ‘‘This Core Value does not obligate ICANN to enforce its human rights obligations or the human rights obligations of other parties, against other parties’ · Kavouss: second part ("or coerce third parties" ) is not quite clear - could we define the language being used ("third parties": who are these)? · David: agrees, there appears to be a disconnect between the 1st and 2nd part · Greg: implicitely refers back to Ruggie's principle · Tatiana Tropina: so I don't think anyone argues about concepts but just about the clarity of this text · David: I think the problem starts with the use of the word "impose" · Kavouss: "of those third parties" also needs to be clarified · Avri: does it mean that there should be compliance of contracted parties? · Jorge Cancio (GAC Switzerland): "without prejudice to what is stated elsewhere"? · Niels ten Oever: Maybe this: This part of the bylaw draws the clear line between “respect” for human rights as a Core Value and any attempt to extend the Bylaw into requiring ICANN to take enforcement action to any other party or ask other parties to take enforcement action. · ACTION (Drafting team) come up with new proposal for 2nd reading. 2nd reading · Kavouss: suggest we wait till next meeting before we do the 2nd reading. · Niels: 1st reading was done during last meeting, there was time between the 2 readings. a.‘within the scope of its Mission’ · agreement from the group b.‘within the scope of other Core Values’ (with minor changes as per discussion last week) · Kavouss: replace "described" by "stipulated" · Greg: we don't nee "legal" before "hierarchy" in the last paragraph · Jorge: hierarchy could be moral, pragmatical etc. This is a legal test, so it should be a "legal hierarchy", · Greg: I disagree that it's a legal balancing test. · Tatiana: I agree, it's not a legal test, and there is no hierarchy between core values. · Jorge: why are we reopening this discussion? if so, there are other I could reopen too. · Tatiana: We could say that there is no pre-existing hierarchy, or no predetermined hierarchy. · Kavouss Arasteh: Retention or otherwise of term"Legal" does not create any problem .However, it retention may give the impression that there are other types of hierarchy than legal,thus I suggest to remove it ACTION (drafting team): come up with new proposal c.‘respecting’ · Not discussed d. ‘internationally recognized human rights’ · Not discussed e. ‘as required by applicable law’ · Not discussed 3. AOB

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FW: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call
by McAuley, David Nov. 22, 2016

Nov. 22, 2016

Below is the copy of the mail I sent to Leon re HR questions - I had noted some clarifications to what legal team was considering and Leon asked me to take a pass at clarifying. David From: McAuley, David Sent: Friday, November 18, 2016 9:43 AM To: 'ccwg-accountability5(a)icann.org' Subject: My suggestions for tweaking HR Sub-Team questions after yesterday's Legal team call Hi Leon and legal team, Here are the question we addressed yesterday with respect to the HR sub-team: 1. What is the definition ICANN legal uses for 'applicable law'? 2. What does the term "Respect" mean according to the bylaws (in relation to Core Values)? 3. What is the relationship between core values and commitments in general; and the HR core value and commitments in particular? 4. How does the balancing progress between core values, as described in the bylaws, take place? Is it documented? On the call I noted some comments in the nature of clarification and Leon asked if I would suggest some revisions on list and here below are my thoughts. First, however, two important points. One, I will separately send a copy of this memo to Niels ten Oever, one of the rapporteurs of the HR Sub-Team who is handling this matter for the sub-team. I will ask Niels to contact us through Leon rather quickly if he has any issue with any of this. And, two, recall that I am a member of the HR Sub-team and have taken an active position on the nature of "respect" and the meaning of "applicable law" in the team. There are other views than mine and they have been reasonably expressed - the discussion is not ended. So I come at this with a point of view, nonetheless I have endeavored to make these "tweaked" questions fair and in keeping with the questions originally posed by Niels. Here is how I suggest we handle these questions and forward them to ICANN legal: 1. With respect to ICANN legal's understanding of the definition of "applicable law": a. Has ICANN legal developed an understanding of the meaning of the term "applicable law"? b. If so, does that understanding apply in the context of the new bylaw at Article 1.2(b)(viii)? c. Would the following definition of "applicable law," currently under consideration by the CCWG WS2 Sub-Team on Human Rights, be consistent with either or both of those?: a. <Quote>: Applicable law refers to the body of law that binds ICANN at any given time, in any given circumstance and in any relevant jurisdiction. It consists of statutes, rules, regulations, etcetera, as well as judicial opinions, where appropriate. It is a dynamic concept inasmuch as laws, regulations, etcetera, change over time. Applicable law can have disparate impacts on ICANN around the globe: for example, if ICANN employs personnel in different jurisdictions then it must observe the appropriate labour laws in those various locales. Applicable law is thus a large body of law that eludes our ability to catalogue, but it is ascertainable in the context of a specific question or issue. <Quote> d. Please share the applicable understanding(s). 2. With respect to questions 2 through 4 above I suggest we leave the questions as they are but introduce each of them with this phrase: "In the view of ICANN legal,". Best regards, David David McAuley International Policy Manager Verisign Inc. 703-948-4154

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OECD HR guidlines
by avri doria Nov. 16, 2016

Nov. 16, 2016

Hi, During our last call, Markus spoke of the OECD guidelines for Multinational enterprises. I got the pointer for the doc from him and extracted the relevant pages. They are attached. avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting #12 | 15NOV16
by MSSI Secretariat Nov. 15, 2016

Nov. 15, 2016

Hello all, Please see the notes and details for the CCWG Accountability WS2 - Human Rights Subgroup Meeting #12 here; https://community.icann.org/x/jI7DAw The notes are also listed below. Thank you! Kind Regards, Yvette Guigneaux Multi-Stakeholder & Strategic Initiative Assistant ICANN | Internet Corporation for Assigned Names & Numbers 12025 Waterfront Drive, Playa Vista, CA 90094 yvette.guigneaux(a)icann.org<mailto:yvette.guigneaux@icann.org> | www.icann.org<http://www.icann.org/> Notes Human Rights Meeting #12 (15 November @ 19:00 UTC) Notes (including relevant parts of chat): 1. Administrivia · Apologies: Anne Aikman-Scalese, Matthew Shears, Tatiana Tropina · Roll call will be taken from AC room. · No audio only participants. · 3 open questions to ICANN legal. ACTION (Staff): follow-up with ICANN Legal - Karen: Answers will be provided next week. · Cheryl Langdon-Orr (CLO): small update to SOI mine is yet to reflect my new role as ALAC Liaison to the GNSO Council update later today · David McAuley: I think I will need to update my SOI as well as I am taking over as Rapporteur of IRP IoT - not sure if that will require a new SOI but should mention it here just in case 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’ · "core value" should be capitalized · David McAuley: My comment - this section appears fine · No other comments from the group on this section. b.‘within the scope of other Core Values’ · Discussed the balancing process: · avri doria: In this balancing can a core value be violated? · The FoI says: "The result of a balancing-test cannot cause ICANN to violate any Commitment, as Commitments are binding." · David McAuley: where one core value is honored another might be partially honored or not honored in a balancing test it seems. · Chris LaHatte: the usual test for breaches of human rights is one of proportionality. · Jorge Cancio (GAC Switzerland): Normally in a balancing test you need to address each and every factor (here each core value) and motivate how this is done and with what result. · John Laprise: So, on a given decision/issue. could the community demand of ICANN an explanation of how a particular core value was weighed/applied/respected? · Pending response from ICANN legal on how the balancing works · Jorge Cancio (GAC Switzerland): Let's also wait for ICANN Legal and their take on how commitments and core values are meant to work together · Might require additional text, after responses are received from Legal ICANN. · Suggestion to change "cannot" into "may not" / ""should not" / "shall not" / "must not" . "Must not" is retained, to be further discussed on the list if necessary. · Suggestion to add references next to quotations. c.‘respecting’ · No comments from the group. d. ‘internationally recognized human rights’ · No comments from the group. e. ‘as required by applicable law’ · Daniel Appelman: When read with the "respecting" explanation, this implies that ICANN has no obligation to respect human rights except where national laws directly place ICANN under those obligations. · avri doria: David does that not make this meaningless? or rather it just says forget about HR, just obey the law? · Jorge Cancio (GAC Switzerland): I had similar concerns to those expressed by Avri. But I feel the Core Value not only restricts ICANN to avoid violating HR. It also brings with it a positive element to be guided by internationally recognised human rights in its actions · Greg Shatan: The point is to abide by the laws but still respect Human Rights. · Daniel Appelman: ICANN respecting human rights "as required by applicable law" makes little sense when the next section says that mostly only States are required to respect human rights. · avri doria: if there is no law protecting a hr, do we still need to care about the hr. · David McAuley: it's not a matter of not caring, but a matter of observing the law · Erich Schweighofer: ICANN's policies should respect human rights ... but implementation may conflict with applicable law. Sad but reality, contradictions have to be solved by HR institutions. · Jorge: other areas of the FoI cover the obligation of ICANN to respect HR. · Markus: suggestion to refer to the OECD guidelines. f. ‘This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission or beyond obligations found in applicable law’ · not discussed g. ‘‘This Core Value does not obligate ICANN to enforce its human rights obligations or the human rights obligations of other parties, against other parties’ · not discussed 3. AOB · WIll continue this reading on the list and next week. · Action Items ACTION (Staff): follow-up with ICANN Legal - Karen: Answers will be provided next week.

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Re: [Ws2-hr] new document + proposed agenda for meeting Nov 15 19:00 UTC
by policy＠paulmcgrady.com Nov. 15, 2016

Nov. 15, 2016

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new document + proposed agenda for meeting Nov 15 19:00 UTC
by Niels ten Oever Nov. 15, 2016

Nov. 15, 2016

Dear all, It was a great pleasure to see many of you in Hyderabad. Next to pleasurable it has also been a very productive week. The drafting has team managed to meet several times. Product of these meetings is an initial, clean FoI document. You can find the document attached and here: https://docs.google.com/document/d/1ZJ02NHeKt9krBGd9V4q54_gl_RPcWGA9d8-WuV_… For the first reading of this document I would like to propose the following 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 or beyond obligations found in applicable law’ g. ‘‘This Core Value does not obligate ICANN to enforce its human rights obligations or the human rights obligations of other parties, against other parties’ 3. AOB Thanks again to the drafting team for their great work in the spirit of consensus and the multistakeholder model. Comments and suggestions are welcome as always. Looking forward to the call. Best, Niels

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Council of Europe Report on Community TLDs
by Niels ten Oever Nov. 3, 2016

Nov. 3, 2016

Dear all, The Council of Europe released a report on Community TLDs which might be relevant for our work. Please find it attached for your reference. 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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