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

Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting #5 | 13 September
by MSSI Secretariat Sept. 13, 2016

Sept. 13, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #5 - 13 September 2016 will be available here: https://community.icann.org/x/VxKsAw A copy of the 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 ITEM: 1. Drafting team to analyze the appropriate Ruggie principles as they may apply to ICANN 2. Add to the agenda for next meeting the process and procedures to use (PDP) for ICANN human rights Notes 1. Administrivia SOI changes and updates, concerns with process and procedures for group and with ICANN - Annex 6 procedures 2. Final Discussion on: Summary on what was agreed and discussed on human rights during WS1 2nd reading - No comments received on the list, asked for comments from participants on the call. no comments, proposed agreed document and accept it as is. Indication from participants that they support using the document as drafted. 3. General Discussion & Q&A on Ruggie Principles and Ruggie FIFA report Discussion of the Ruggie Principles and concerns raised during WS1 and how they apply to ICANN and if they can be applied to ICANN. Need to look at framework for application , note that 1) we still are waiting for the assessment of the meaning of the HR commitment being a "core value"; 2) Last week we agreed to look into the Ruggie Principles, one by one: please let us do so, without making absolute claims as to their relevance. Might be a good idea to discussion the principles one by one for applicablibity and applicaiton. Principels 1 through 10 apply to member states so would not apply to ICANN as ICANN does not have a state role. Should start with Principle 11 to determine if apply's to ICANN. In response to a question the Ruggie Principles appear to apply to corporations who are governed/owned by a state, which is different that the role of ICANN which could make them a bad fit to apply to ICANN. Conclude that ICANN is not a state, ICANN may not be a clear cut organization that the principles apply. Need to go ahead with the drafting team to have them analyze the appropriate principles as they may apply to ICANN 4. Discussion on: Analysis of Ruggie Principles for ICANN - Short presentation by Drafting Volunteers Report from the drafting team 5. AOB

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Considerations re Ruggie Principles
by McAuley, David Sept. 9, 2016

Sept. 9, 2016

While I did not volunteer to work on analyzing which Ruggie Principles to incorporate into an ICANN respect-for-HR bylaw, I do want to help in that work and so offer these comments. My primary concern is that we stay within the scope of the Bylaw we are interpreting (Bylaw Section 1.2(b)(viii)) irrespective of which HR compilation we are considering and despite several calls on list to be expansive. I recognize the reason and passion of others who might want us to be bold, but I respectfully disagree and believe we must remain strictly true to the Bylaw provision. In my personal view, that means, partially paraphrasing the Bylaw, staying within the scope of ICANN's mission and other Core Values and concerning ourselves strictly with internationally recognized human rights as required by applicable law. How that might affect consideration of the Ruggie Principles, IMO, would generally involve these points: 1. Placing within the FoI an overarching statement regarding whichever, if any, of the Ruggie Principles sections we choose to recognize that to the extent they might conflict with ICANN's mission and other Core Values then the mission and other core values take precedence. I think such a statement would be applicable with respect to any other internationally recognized compilation of HR we might choose to cite. 2. Under the General Principles, I think that subsection (b) (and similarly subsection 23.(a) under Corporate Responsibility) gets it exactly right with respect to business enterprises ("required to comply with all applicable laws and to respect human rights"), and that subsection (c) ("need for rights and obligations to be matched to appropriate and effective remedies when breached") would apply to ICANN insofar as remedies are available at law. 3. It seems that no duties that States are meant to observe under Section I as well as subsections 25 - 27 of Section III should apply to ICANN. 4. Under Section II on corporate respect for HR, commentary under paragraph 12 makes a point that is consistent with the new Bylaw ("The responsibility of business enterprises to respect human rights is distinct from issues of legal liability and enforcement, which remain defined largely by national law provisions in relevant jurisdictions"); but makes it hard to understand the extent of "internationally recognized" HR - is it the minimum in paragraph 12 or the more broad language in the commentary. It will be good to hear from Prof. Ruggie - and also from Paul Twomey when he is again available. 5. The provisions in Section II on Corporate Responsibility make the overarching limitation mentioned in #1 above very important as some of these provisions could be taken to require ICANN to go beyond its mission (e.g., subsection 13.(b) which could require ICANN to seek " ... to prevent or mitigate adverse human rights impacts that are directly linked to [its] operations ... even if [it has] not contributed to those impacts.") I think we may need to go through each of these in detail on the calls if we wish to adopt them. 6. Finally, with respect to grievance mechanisms in subsection 28 and beyond, I believe we will need to tailor any such mechanisms to fit within our existing mechanisms of Ombudsman, Request for Reconsideration, and IRP as they may be modified in WS2 and decide the applicability of each level to HR. David David McAuley International Policy Manager Verisign Inc. 703-948-4154

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Re: [Ws2-hr] When should ICANN uphold human rights?
by Rudolph Daniel Sept. 9, 2016

Sept. 9, 2016

What Anne has expressed here is pretty close to my understanding of a workable pathway. 'Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate.' end quote That is also my view currently. Is it not possible that the GAC or some other policy development process may, when viewed under the lens of a 'respect for for human rights' p d p, is rejected or modified to bring it in line with a concensus position? rd On Sep 6, 2016 7:18 PM, "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> wrote: Thanks David. This is exactly why we cannot use the Ruggie definition of “respect”. Again, it is difficult for me to see how Ruggie applies since those principles are developed in relation to a corporation that operates “top down” rather than “bottom up” and were not developed in relation to the unique MS policy development framework that applies to ICANN. The Ruggie definition of “respect” would require ICANN action in the context of evaluating and minimizing Human Rights adverse impact in *all its business relationships*. ICANN’s primary business relationships are registry contracts. This includes award and renewal of gTLD contracts (As a side note, and also noting my bias as an IP lawyer in favor of the protection of trademark and copyright, the UDRP and URS processes are not “business relationships” of ICANN. ) These are dispute resolution processes developed through a bottom-up MS approach – again a concept that is completely foreign to businesses for which Ruggie principles were developed. So from my point of view, Ruggie is inapposite and we need to “start from scratch” so that the FOI being developed recognizes the existing ICANN MS Model and the existing policy development process and functions of policy advice coming from the GAC and ALAC and other entities in addition to the GNSO. This is definitely a “balancing act” of Core Values for the Community and the Board. Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate. I would therefore suggest a preamble to the FOI along the following lines: PREAMBLE TO HUMAN RIGHTS FRAMEWORK OF INTERPRETATION “WHEREAS the application of internationally-recognized Human Rights principles in the context of ICANN’s mission and scope requires policy development processes within the ICANN Community and WHEREAS, the application of these principles to ICANN’s activities may require a balancing of ICANN’s Core Values as outlined in the By-Laws at Subparagraph ____(c ) (REPEAT text previously referenced by Jorge Cancion and pasted below) NOW THEREFORE, the CCWG- ACCT recommends the following Framework of Interpretation in relation to the application of the new Human Rights By-Law adopted by the Board on ___________ (date) to ICANN’s scope and mission.” Separately, I personally believe a Human Rights Objection process may be appropriate, thereby taking ICANN itself out of the content regulation business in relation to gTLD applications and awards, but this of course would be a matter for policy development. Anne "(c) The Commitments and Core Values are intended to apply in the broadest possible range of circumstances. The Commitments reflect ICANN’s fundamental compact with the global Internet community and are intended to apply consistently and comprehensively to ICANN’s activities. The specific way in which Core Values are applied, individually and collectively, to any given situation may depend on many factors that cannot be fully anticipated or enumerated. Situations may arise in which perfect fidelity to all Core Values simultaneously is not possible. Accordingly, in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN’s Mission." *Anne E. Aikman-Scalese* Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com *From:* ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] *On Behalf Of *McAuley, David *Sent:* Tuesday, September 06, 2016 3:34 PM *To:* Dr. Tatiana Tropina; ws2-hr(a)icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights? Interesting discussion among thoughtful folks, in which I find myself with Greg and Tanya. Work Stream One, in my opinion/recollection, never intended for the FoI team to throw open the doors and see what we could come up with. I recall a great deal of concern over the notion of an expansive HR commitment and don’t think we would have reached closure if the HR provision would have been a broad one. I think Tanya captured that correctly. As I read it, the bylaw that we are interpreting creates the FoI sub-team ‘charter’ (Section 27.2) as an effort containing “limitations” rather than an invitation to expand the bylaw (Article 1.2(b)(viii) begins “Subject to the limitations set forth in Section 27.2 …”). Whatever FoI we come up with must be approved by the full CCWG, will be sent through the COs, and is subject to board approval – some of the same drivers that helped shape the focus of the Bylaw we came up with in Section 1.2(b)(viii). And the FoI must be consistent with a bylaw that requires respect for HR within the scope of ICANN’s narrow and unique mission. David David McAuley International Policy Manager Verisign Inc. 703-948-4154 *From:* ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org <ws2-hr-bounces(a)icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Tuesday, September 06, 2016 5:38 PM *To:* ws2-hr(a)icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights? Dear Daniel, I would rather disagree with broadening the view that much. First of all, there are other documents from CCWG than define the tasks of this group, than only the bylaw text. In particular, Annex 06 (p. 2) of the CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations report, that was approved, says: "Include the following in Work Stream 2 activities: - Develop an *FOI-HR for the Human Rights Bylaw*" (underlined by me). The drafters of the CCWG report could have been of course more specific and put the wording "FoI for the HR Bylaw" everywhere, but I think it actually never dawned on them that there will be a discussion on broadening the scope of the FoI that much. At least the wording of the Annex 6 (and Annex 12 about WS2) indicates that it's a FoI for bylaw and not for the whole human rights impact assessment (HRIA) within ICANN. Secondly, even a mere interpretation of the bylaw will require a lot of analysis of what you refer to, but extending the work of this group to the whole HRIA is outside of our mandate I think. There was a report of the Cross-community working party for human rights (which is not the part of the work of this CCWG) prepared for the ICANN meeting in Dublin that actually showed that the full HRIA, though might be a desirable option, is a time- and resources-consuming process and might be recommended only in a long-term. We can of course consider recommending ICANN to carry out a HRIA as a part of the FoI, why not, but doing the whole assessment on our own, in this group, rather looks like an impossible task - both in terms of resources and mandate. I think the work of this group should definitely focus on the bylaw interpretation at the moment, because we do have to agree on what the bylaw means first before we will make any further recommendations. warm regards Tatiana On 06/09/16 20:36, Daniel Appelman wrote: I would take a broader view than the one Greg has just suggested. Nowhere in the Bylaw and the conditions upon which it would become effective does it say that the WS2 team’s activities should be restricted to footnoting the Bylaw or prohibited from making recommendations on human rights-related policies. In fact, our mandate is to develop and recommend a “framework of interpretation for human rights”. This is much broader than providing “a framework of interpretation for the Bylaw”. We will not be doing our job unless we consider what human rights are impacted by ICANN and its relationships with third parties and then develop recommendations as to the scope of ICANN’s obligations under the Bylaw to respect those human rights in engaging in those relationships. Dan *Daniel Appelman* Partner *Montgomery & Hansen, LLP* 525 Middlefield Road, Suite 250 Menlo Park, CA 94025 *650.331.7014 <650.331.7014> (direct)* 650-245-8361 (mobile) 650.331.7000 (main) 650.331.7001 (fax) *www.mh-llp.com* <http://www.mh-llp.com/> [image: New Logo - email ver] This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, and destroy all copies of the original message. To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. *From:* ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org <ws2-hr-bounces(a)icann.org>] *On Behalf Of *Greg Shatan *Sent:* Tuesday, September 06, 2016 11:13 AM *To:* Aikman-Scalese, Anne *Cc:* ws2-hr(a)icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights? Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here. We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them. We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one. Greg On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman(a)lrrc.com> wrote: Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights). I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to, 1. Award of registry contracts 2. Contractual provisions required in registry (and by implication registrar) contracts. 3. Adjudication of Requests for Reconsideration 4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments 5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes. Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process. As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2. The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved. I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?) Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights. Anne *Anne E. Aikman-Scalese* Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com _____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com *From:* ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] *On Behalf Of *Tijani BEN JEMAA *Sent:* Sunday, September 04, 2016 11:13 AM *To:* Paul Rosenzweig *Cc:* ws2-hr(a)icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights? Dear all, I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be: - What substance we see in the phrase human rights inside ICANN Mission? - When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases. The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars ------------------------------------------------------------ ----------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 +216 52 385 114 ------------------------------------------------------------ ----------------- Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit : Dear Farzaneh Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect? Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary. Paul Paul Rosenzweig paul.rosenzweig(a)redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ *From:* ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org <ws2-hr-bounces(a)icann.org>] *On Behalf Of *farzaneh badii *Sent:* Sunday, September 4, 2016 11:56 AM *To:* Kavouss Arasteh <kavouss.arasteh(a)gmail.com> *Cc:* ws2-hr(a)icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights? Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh(a)gmail.com> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii(a)gmail.com>: Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? Best -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ------------------------------ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ------------------------------ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

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FW: [Acct-Staff] Fwd: Re: When should ICANN uphold human rights?
by Karen Mulberry Sept. 8, 2016

Sept. 8, 2016

Please see the note from Seun Ojedeji below. Karen Mulberry Multistakeholder Strategy and Strategic Initiatives ICANN From: <acct-staff-bounces(a)icann.org> on behalf of Seun Ojedeji <seun.ojedeji(a)gmail.com> Date: Wednesday, September 7, 2016 at 6:37 PM To: ACCT-Staff <acct-staff(a)icann.org> Subject: [Acct-Staff] Fwd: Re: [Ws2-hr] When should ICANN uphold human rights? Hello Staff, Could you kindly help send this to the HR list. Kindly also change my status to participant as I like to be able to post to the list occasionally. Regards Sent from my LG G4 Kindly excuse brevity and typos ---------- Forwarded message ---------- From: "Seun Ojedeji" <seun.ojedeji(a)gmail.com> Date: 7 Sep 2016 07:59 Subject: Re: [Ws2-hr] When should ICANN uphold human rights? To: "Rudolph Daniel" <rudi.daniel(a)gmail.com> Cc: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com>, <ws2-hr(a)icann.org> > On Wed, Sep 7, 2016 at 2:17 AM, Rudolph Daniel <rudi.daniel(a)gmail.com> wrote: >> >> What Anne has expressed here is pretty close to my understanding of a >> workable pathway. >> >> 'Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of >> policy development is inadequate.' end quote > > SO: Wouldn't it then be accurate to say the only application of HR within > ICANN would be to ensure there is adequate accountability mechanism in place > within ICANN processes (including policy implementation). In order words, HR > within ICANN is not a set of separate terms to be respected but "respect of > HR" would be achieved indirectly through adequately following other rules and > procedures guiding various processes within ICANN. > > Regards >> That is also my view currently. >> >> Is it not possible that the GAC or some other policy development process may, >> when viewed under the lens of a 'respect for for human rights' p d p, is >> rejected or modified to bring it in line with a concensus position? >> rd >> >> >> On Sep 6, 2016 7:18 PM, "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> wrote: >>> Thanks David. This is exactly why we cannot use the Ruggie definition of >>> ³respect². Again, it is difficult for me to see how Ruggie applies since >>> those principles are developed in relation to a corporation that operates >>> ³top down² rather than ³bottom up² and were not developed in relation to the >>> unique MS policy development framework that applies to ICANN. >>> >>> The Ruggie definition of ³respect² would require ICANN action in the context >>> of evaluating and minimizing Human Rights adverse impact in all its >>> business relationships. >>> >>> ICANN¹s primary business relationships are registry contracts. This >>> includes award and renewal of gTLD contracts (As a side note, and also >>> noting my bias as an IP lawyer in favor of the protection of trademark and >>> copyright, the UDRP and URS processes are not ³business relationships² of >>> ICANN. ) These are dispute resolution processes developed through a >>> bottom-up MS approach again a concept that is completely foreign to >>> businesses for which Ruggie principles were developed. >>> >>> So from my point of view, Ruggie is inapposite and we need to ³start from >>> scratch² so that the FOI being developed recognizes the existing ICANN MS >>> Model and the existing policy development process and functions of policy >>> advice coming from the GAC and ALAC and other entities in addition to the >>> GNSO. This is definitely a ³balancing act² of Core Values for the Community >>> and the Board. Any Human Rights FOI that does not EXPLICITLY recognize the >>> MS Model of policy development is inadequate. >>> >>> I would therefore suggest a preamble to the FOI along the following lines: >>> >>> PREAMBLE TO HUMAN RIGHTS FRAMEWORK OF INTERPRETATION >>> >>> ³WHEREAS the application of internationally-recognized Human Rights >>> principles in the context of ICANN¹s mission and scope requires policy >>> development processes within the ICANN Community and >>> >>> WHEREAS, the application of these principles to ICANN¹s activities may >>> require a balancing of ICANN¹s Core Values as outlined in the By-Laws at >>> Subparagraph ____(c ) (REPEAT text previously referenced by Jorge Cancion >>> and pasted below) >>> >>> NOW THEREFORE, the CCWG- ACCT recommends the following Framework of >>> Interpretation in relation to the application of the new Human Rights By-Law >>> adopted by the Board on ___________ (date) to ICANN¹s scope and mission.² >>> >>> Separately, I personally believe a Human Rights Objection process may be >>> appropriate, thereby taking ICANN itself out of the content regulation >>> business in relation to gTLD applications and awards, but this of course >>> would be a matter for policy development. >>> >>> Anne >>> >>> "(c) The Commitments and Core Values are intended to apply in the broadest >>> possible range of circumstances. The Commitments reflect ICANN¹s >>> fundamental compact with the global Internet community and are intended to >>> apply consistently and comprehensively to ICANN¹s activities. The specific >>> way in which Core Values are applied, individually and collectively, to any >>> given situation may depend on many factors that cannot be fully anticipated >>> or enumerated. Situations may arise in which perfect fidelity to all Core >>> Values simultaneously is not possible. Accordingly, in any situation where >>> one Core Value must be balanced with another, potentially competing Core >>> Value, the result of the balancing must serve a policy developed through the >>> bottom-up multistakeholder process or otherwise best serve ICANN¹s Mission." >>> >>> >>> >>> >>> >>> >>> >>> Anne E. Aikman-Scalese >>> Of Counsel >>> 520.629.4428 <tel:520.629.4428> office >>> 520.879.4725 <tel:520.879.4725> fax >>> AAikman(a)lrrc.com <mailto:AAikman@lrrc.com> >>> _____________________________ >>> Lewis Roca Rothgerber Christie LLP >>> One South Church Avenue, Suite 700 >>> Tucson, Arizona 85701-1611 >>> lrrc.com <http://lrrc.com/> >>> >>> >>> From:ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of >>> McAuley, David >>> Sent: Tuesday, September 06, 2016 3:34 PM >>> To: Dr. Tatiana Tropina; ws2-hr(a)icann.org >>> >>> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? >>> >>> Interesting discussion among thoughtful folks, in which I find myself with >>> Greg and Tanya. >>> >>> Work Stream One, in my opinion/recollection, never intended for the FoI team >>> to throw open the doors and see what we could come up with. I recall a great >>> deal of concern over the notion of an expansive HR commitment and don¹t >>> think we would have reached closure if the HR provision would have been a >>> broad one. I think Tanya captured that correctly. >>> >>> As I read it, the bylaw that we are interpreting creates the FoI sub-team >>> charter¹ (Section 27.2) as an effort containing ³limitations² rather than >>> an invitation to expand the bylaw (Article 1.2(b)(viii) begins ³Subject to >>> the limitations set forth in Section 27.2 ²). >>> >>> Whatever FoI we come up with must be approved by the full CCWG, will be sent >>> through the COs, and is subject to board approval some of the same drivers >>> that helped shape the focus of the Bylaw we came up with in Section >>> 1.2(b)(viii). And the FoI must be consistent with a bylaw that requires >>> respect for HR within the scope of ICANN¹s narrow and unique mission. >>> >>> David >>> >>> >>> David McAuley >>> International Policy Manager >>> Verisign Inc. >>> 703-948-4154 <tel:703-948-4154> >>> >>> >>> From:ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of >>> Dr. Tatiana Tropina >>> Sent: Tuesday, September 06, 2016 5:38 PM >>> To: ws2-hr(a)icann.org >>> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? >>> >>> Dear Daniel, >>> >>> I would rather disagree with broadening the view that much. >>> >>> First of all, there are other documents from CCWG than define the tasks of >>> this group, than only the bylaw text. In particular, Annex 06 (p. 2) of the >>> CCWG-Accountability Supplemental Final Proposal on Work Stream 1 >>> Recommendations report, that was approved, says: >>> >>> "Include the following in Work Stream 2 activities: >>> - Develop an FOI-HR for the Human Rights Bylaw" (underlined by me). >>> >>> The drafters of the CCWG report could have been of course more specific and >>> put the wording "FoI for the HR Bylaw" everywhere, but I think it actually >>> never dawned on them that there will be a discussion on broadening the scope >>> of the FoI that much. At least the wording of the Annex 6 (and Annex 12 >>> about WS2) indicates that it's a FoI for bylaw and not for the whole human >>> rights impact assessment (HRIA) within ICANN. >>> >>> Secondly, even a mere interpretation of the bylaw will require a lot of >>> analysis of what you refer to, but extending the work of this group to the >>> whole HRIA is outside of our mandate I think. There was a report of the >>> Cross-community working party for human rights (which is not the part of the >>> work of this CCWG) prepared for the ICANN meeting in Dublin that actually >>> showed that the full HRIA, though might be a desirable option, is a time- >>> and resources-consuming process and might be recommended only in a >>> long-term. We can of course consider recommending ICANN to carry out a HRIA >>> as a part of the FoI, why not, but doing the whole assessment on our own, in >>> this group, rather looks like an impossible task - both in terms of >>> resources and mandate. >>> >>> I think the work of this group should definitely focus on the bylaw >>> interpretation at the moment, because we do have to agree on what the bylaw >>> means first before we will make any further recommendations. >>> >>> warm regards >>> Tatiana >>> >>> >>> >>> On 06/09/16 20:36, Daniel Appelman wrote: >>>> I would take a broader view than the one Greg has just suggested. Nowhere >>>> in the Bylaw and the conditions upon which it would become effective does >>>> it say that the WS2 team¹s activities should be restricted to footnoting >>>> the Bylaw or prohibited from making recommendations on human rights-related >>>> policies. In fact, our mandate is to develop and recommend a ³framework of >>>> interpretation for human rights². This is much broader than providing ³a >>>> framework of interpretation for the Bylaw². We will not be doing our job >>>> unless we consider what human rights are impacted by ICANN and its >>>> relationships with third parties and then develop recommendations as to the >>>> scope of ICANN¹s obligations under the Bylaw to respect those human rights >>>> in engaging in those relationships. >>>> >>>> Dan >>>> >>>> Daniel Appelman >>>> Partner >>>> Montgomery & Hansen, LLP >>>> 525 Middlefield Road, Suite 250 >>>> Menlo Park, CA 94025 >>>> 650.331.7014 <tel:650.331.7014> (direct) >>>> 650-245-8361 <tel:650-245-8361> (mobile) >>>> 650.331.7000 <tel:650.331.7000> (main) >>>> 650.331.7001 <tel:650.331.7001> (fax) >>>> www.mh-llp.com <http://www.mh-llp.com/> >>>> >>>> >>>> This e-mail message is for the sole use of the intended recipient(s) and >>>> may contain confidential and privileged information. Any unauthorized >>>> review, use, disclosure or distribution is prohibited. If you are not the >>>> intended recipient, please contact the sender by reply e-mail, and destroy >>>> all copies of the original message. To ensure compliance with requirements >>>> imposed by the IRS, we inform you that any tax advice contained in this >>>> communication, unless expressly stated otherwise, was not intended or >>>> written to be used, and cannot be used, for the purpose of (i) avoiding >>>> tax-related penalties under the Internal Revenue Code or (ii) promoting, >>>> marketing or recommending to another party any tax-related matter(s) >>>> addressed herein. >>>> >>>> >>>> >>>> From:ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf >>>> Of Greg Shatan >>>> Sent: Tuesday, September 06, 2016 11:13 AM >>>> To: Aikman-Scalese, Anne >>>> Cc: ws2-hr(a)icann.org >>>> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? >>>> >>>> >>>> Whatever we do, we can't create gTLD policy. We can (and indeed must) >>>> provide guidance in how the Bylaw should be interpreted by those engaged in >>>> gTLD policy development. But the policy development process cannot take >>>> place here. >>>> >>>> >>>> >>>> We also should not be creating procedural mechanisms for when a Human >>>> Rights impact evaluation is triggered. Nor should we even be the one to >>>> create or mandate a human rights impact evaluation. Again, we should >>>> provide guidance in how the Bylaw should be interpreted by those who might >>>> consider whether to create such mechanisms or evaluations, and those who >>>> create them. >>>> >>>> >>>> >>>> We need to stick to our mandate, which is to provide a Framework of >>>> Interpretation for the Bylaw. To my mind, this essentially means >>>> "annotating" the Bylaw, with what amount to a series of footnotes, so that >>>> the language used will be used consistently by groups that come after this >>>> one. >>>> >>>> >>>> Greg >>>> >>>> >>>> >>>> On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman(a)lrrc.com> >>>> wrote: >>>> >>>> Protection of registrant data is certainly important. This was studied for >>>> quite a long time by the Expert Working Group on WhoIs and is now the >>>> subject of a GNSO Policy Development Process. As I understand it, the new >>>> framework for Directory Registry Services essentially proposes a ³need to >>>> know² threshold test. I think it would be naïve for this Workstream 2 >>>> group to hold that Human Rights (in the form of privacy and freedom of >>>> expression) were not considered by the EWG or won¹t be considered in the >>>> final outcome of the PDP. In fact, the activities of these groups with >>>> respect to registrant data have sought to balance two clearly listed Human >>>> Rights guidelines in the UDRP that is the privacy right and the rights of >>>> authors (i.e. intellectual property rights). >>>> >>>> I don¹t think the work done in the FOI for Workstream 2 Human Rights is >>>> supposed to trump the policy work of the GNSO or the public policy advice >>>> of the GAC or the advice of the ALAC. Still not sure, however, how this >>>> Framework of Interpretation for Human Rights can be considered anything >>>> other than new gTLD policy when applied to ICANN¹s new gTLD activities, >>>> including, but not limited to, >>>> >>>> 1. Award of registry contracts >>>> >>>> 2. Contractual provisions required in registry (and by implication >>>> registrar) contracts. >>>> >>>> 3. Adjudication of Requests for Reconsideration >>>> >>>> 4. Adjudication of complaints filed with ICANN with respect to Spec 11 >>>> Public Interest Commitments >>>> >>>> 5. Possible revocation of gTLD contract awards in relation to registry >>>> operators using TLDs for Human Rights abuse purposes. >>>> >>>> Separately, regarding, for example, UDRP and URS proceedings, these are not >>>> actually activities of ICANN. These are dispute resolution mechanisms that >>>> take place outside ICANN¹s operations and are less directly implicated in >>>> the Human Rights framework than the activities listed in 1 through 5 above. >>>> However, these are mechanisms developed through the ICANN Policy >>>> Development Process. >>>> >>>> As a practical matter, it would seem that the best this WS2 team can do is >>>> establish a procedural mechanism for determining when a Human Rights Impact >>>> review is triggered and a process where the Community conducts such a Human >>>> Rights Impact review. This necessarily would have to correlate with Policy >>>> Development. In the end, the various policy advisory groups may well >>>> disagree as they provide advice to the Board and it is the Board which >>>> makes the final decision, even in the new Empowered Community model. The >>>> Board receives advice from many different sources. One such source is the >>>> European Commission, whose advice is one reason this new By-Law exists and >>>> one reason this group exists in WS2. >>>> >>>> The only practical way forward from my point of view is for this group to >>>> define criteria as to when a Human Rights Impact evaluation is triggered >>>> and how it should be conducted within policy-making activities already >>>> going on in the Community. This would include the five items listed above >>>> if indeed we are to use such general language as is proposed in the FOI in >>>> relation to ³respect human rights² in a manner which requires ICANN to take >>>> action to eliminate or reduce adverse Human Rights impact in the business >>>> relationships and activities with which it is involved. >>>> >>>> I can compare all this to the process in the U.S. which requires an >>>> Environmental Impact Statement as to various business activities. The >>>> criteria for a Human Rights Impact Statement might be a starting point. >>>> However, in developing such a Human Rights Impact evaluation, and as agreed >>>> in WS1, we cannot focus on just one or two or three of the relevant Human >>>> Rights. None of the Human Rights documents we refer to rank these rights >>>> in order of priority as far as I know. The rights of authors and >>>> indigenous peoples I represent are just as important as the rights of >>>> freedom of expression and privacy. In fact, author¹s rights (including the >>>> copyright rights which give the authors the exclusive right to make changes >>>> to their own works) may be equally important to condemning oppressive >>>> governmental action or exploitation of native culture for corporate or >>>> personal gain. (Why would registrant information be protected for sellers >>>> of fake Navajo jewelry?) >>>> >>>> Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my >>>> firm represents the Navajo Nation for certain intellectual property >>>> matters. (We currently have no instructions from either with respect to >>>> participation in ICANN so my views are my own.) In ICANN¹s activities, it >>>> appears to me that a Human Rights Impact analysis is ALWAYS a question of >>>> balancing various Human Rights. >>>> Anne >>>> >>>> Anne E. Aikman-Scalese >>>> Of Counsel >>>> 520.629.4428 <tel:520.629.4428> office >>>> 520.879.4725 <tel:520.879.4725> fax >>>> AAikman(a)lrrc.com <mailto:AAikman@lrrc.com> >>>> _____________________________ >>>> Lewis Roca Rothgerber Christie LLP >>>> One South Church Avenue, Suite 700 >>>> Tucson, Arizona 85701-1611 >>>> lrrc.com <http://lrrc.com/> >>>> >>>> >>>> From:ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf >>>> Of Tijani BEN JEMAA >>>> Sent: Sunday, September 04, 2016 11:13 AM >>>> To: Paul Rosenzweig >>>> >>>> >>>> Cc: ws2-hr(a)icann.org >>>> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? >>>> >>>> >>>> Dear all, >>>> I agree with Paul that among the main questions for us to come up with a >>>> Frame of Interpretation of the Human Rights in the ICANN mission would be: >>>> * What substance we see in the phrase human rights inside ICANN >>>> Mission? >>>> * When, if ever, ICANN should give that substance (whatever it may >>>> be) effect? >>>> I can¹t say they are the only meaningful questions since there will be >>>> subsequent questions. But let¹s start with the first question: I think that >>>> to address it, we may begin by giving practical easy cases. >>>> The protection of the registrant data is one of the most obvious case of >>>> human right that falls in the ICANN mission. This may also affect the ICANN >>>> contract with registries/registrars >>>> >>>> >>>> >>>> --------------------------------------------------------------------------- >>>> -- >>>> >>>> Tijani BEN JEMAA >>>> >>>> Executive Director >>>> >>>> Mediterranean Federation of Internet Associations (FMAI) >>>> >>>> Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114> >>>> >>>> +216 52 385 114 <tel:%2B216%2052%20385%20114> >>>> >>>> --------------------------------------------------------------------------- >>>> -- >>>> >>>> >>>>> >>>>> Le 4 sept. 2016 à 18:24, Paul Rosenzweig >>>>> <paul.rosenzweig(a)redbranchconsulting.com> a écrit : >>>>> >>>>> >>>>> Dear Farzaneh >>>>> >>>>> >>>>> >>>>> Of course your questions are meaningful. Indeed, the ONLY two meaningful >>>>> questions in this discussion are a) what substance we see in the phrase >>>>> human rights? And b) When, if ever, ICANN should give that substance >>>>> (whatever it may be) effect? >>>>> >>>>> >>>>> >>>>> Your questions clearly go to the later of these two issues. Members of >>>>> the group may disagree on the answers we reach, but you¹re asking >>>>> questions that have real meaning whatever anyone may say to the >>>>> contrary. >>>>> >>>>> >>>>> >>>>> Paul >>>>> >>>>> >>>>> >>>>> Paul Rosenzweig >>>>> >>>>> paul.rosenzweig(a)redbranchconsulting.com >>>>> <mailto:paul.rosenzweig@redbranchconsulting.com> >>>>> >>>>> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> >>>>> >>>>> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> >>>>> >>>>> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> >>>>> >>>>> www.redbranchconsulting.com <http://www.redbranchconsulting.com/> >>>>> >>>>> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ >>>>> <http://redbranchconsulting.com/who-we-are/public-pgp-key/> >>>>> >>>>> >>>>> >>>>> From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf >>>>> Of farzaneh badii >>>>> Sent: Sunday, September 4, 2016 11:56 AM >>>>> To: Kavouss Arasteh <kavouss.arasteh(a)gmail.com> >>>>> Cc: ws2-hr(a)icann.org >>>>> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? >>>>> >>>>> >>>>> >>>>> Calling something "not meaningful" is very easy. But it does not devalue >>>>> its merits, fortunately. Please provide a rationale for why the questions >>>>> are not meaningful. I don't have to consult with the co-chairs to discuss >>>>> the questions here. If the group feels that it is unnecessary to discuss >>>>> these questions they can simply not respond, if they feel we should >>>>> re-formulate them, then we can. >>>>> >>>>> >>>>> >>>>> The questions are to clarify what we mean by ICANN should not become a >>>>> content regulator. The discussions that can arise responding to the >>>>> question and sub-questions which I have posted can lead us towards a more >>>>> tangible understanding of what we mean when we say ICANN should not become >>>>> a content regulator and should not go out of its scope and mission when >>>>> upholding human rights. >>>>> >>>>> >>>>> >>>>> Best >>>>> >>>>> >>>>> >>>>> Farzaneh >>>>> >>>>> >>>>> >>>>> On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh(a)gmail.com >>>>> <mailto:kavouss.arasteh@gmail.com> > wrote: >>>>>> >>>>>> Dear All, >>>>>> >>>>>> I do not understand the meaning and purpose of these questions. >>>>>> >>>>>> Perhaps the author of the questions could consult other two co chairs and >>>>>> come up with meaningfull text. >>>>>> >>>>>> We can not send out these questions at all >>>>>> >>>>>> Reagrds >>>>>> >>>>>> Kavouss >>>>>> >>>>>> >>>>>> >>>>>> 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii(a)gmail.com >>>>>> <mailto:farzaneh.badii@gmail.com> >: >>>>>>> >>>>>>> Hi all, >>>>>>> >>>>>>> >>>>>>> >>>>>>> Sorry for sending out the questions late. I wanted to provide a gist of >>>>>>> what we discussed during our call and then provide the questions but >>>>>>> unfortunately, we still do not have the recording. Below are some >>>>>>> questions for the group to discuss: >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> Considering ICANN's scope and mission, when should ICANN uphold human >>>>>>> rights? >>>>>>> >>>>>>> >>>>>>> >>>>>>> - In its consideration to enter into contracts with registries and >>>>>>> registrars? (for example, when they are considering a new gTLD >>>>>>> application) >>>>>>> >>>>>>> >>>>>>> >>>>>>> - During the contractual relationship with the registries and the >>>>>>> registrars by obligating the registries and registrars to enforce human >>>>>>> rights? >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> Best >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> >>>>>>> -- >>>>>>> >>>>>>> Farzaneh >>>>>>> >>>>>>> >>>>>>> _______________________________________________ >>>>>>> Ws2-hr mailing list >>>>>>> Ws2-hr(a)icann.org <mailto:Ws2-hr@icann.org> >>>>>>> https://mm.icann.org/mailman/listinfo/ws2-hr >>>>>>> <https://mm.icann.org/mailman/listinfo/ws2-hr> >>>>>> >>>>>> >>>>> >>>>> >>>>> >>>>> >>>>> >>>>> -- >>>>> >>>>> Farzaneh >>>>> _______________________________________________ >>>>> Ws2-hr mailing list >>>>> Ws2-hr(a)icann.org >>>>> https://mm.icann.org/mailman/listinfo/ws2-hr >>>> >>>> >>>> >>>> >>>> >>>> This message and any attachments are intended only for the use of the >>>> individual or entity to which they are addressed. If the reader of this >>>> message or an attachment is not the intended recipient or the employee or >>>> agent responsible for delivering the message or attachment to the intended >>>> recipient you are hereby notified that any dissemination, distribution or >>>> copying of this message or any attachment is strictly prohibited. If you >>>> have received this communication in error, please notify us immediately by >>>> replying to the sender. The information transmitted in this message and any >>>> attachments may be privileged, is intended only for the personal and >>>> confidential use of the intended recipients, and is covered by the >>>> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. >>>> >>>> _______________________________________________ >>>> Ws2-hr mailing list >>>> Ws2-hr(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/ws2-hr >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-hr mailing list >>>> Ws2-hr(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/ws2-hr >>>> >>>> >>>> >>>> >>>> This message and any attachments are intended only for the use of the >>>> individual or entity to which they are addressed. If the reader of this >>>> message or an attachment is not the intended recipient or the employee or >>>> agent responsible for delivering the message or attachment to the intended >>>> recipient you are hereby notified that any dissemination, distribution or >>>> copying of this message or any attachment is strictly prohibited. If you >>>> have received this communication in error, please notify us immediately by >>>> replying to the sender. The information transmitted in this message and any >>>> attachments may be privileged, is intended only for the personal and >>>> confidential use of the intended recipients, and is covered by the >>>> Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. >>>> >>>> _______________________________________________ >>>> Ws2-hr mailing list >>>> Ws2-hr(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/ws2-hr >>>> >>>> >>>> >>>> _______________________________________________ >>>> Ws2-hr mailing list >>>> Ws2-hr(a)icann.org >>>> https://mm.icann.org/mailman/listinfo/ws2-hr >>>> >>>> >>>> >>>> >>>> -- >>>> ------------------------------------------------------------------------ >>>>> Seun Ojedeji, >>>>> Federal University Oye-Ekiti >>>>> web: http://www.fuoye.edu.ng >>>>> Mobile: +2348035233535 >>>>> alt email: <http://goog_1872880453> seun.ojedeji(a)fuoye.edu.ng >>>>> >>>>>> Bringing another down does not take you up - think about your action! >>>> >>> >>>

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When should ICANN uphold human rights?
by farzaneh badii Sept. 7, 2016

Sept. 7, 2016

Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? Best -- Farzaneh

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Workplan + documents coming week in preparation of meeting #5
by Niels ten Oever Sept. 7, 2016

Sept. 7, 2016

Dear all, We agreed on the call that our work plan for the coming week consists of the following points: 1. Await response from ICANN legal on the following question (as agreed during meeting #3): '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?' 2. Review the 'Summary' document (all)(attached and here: https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNM… ) 3. Read/watch the following documents in preparation (all): - Video introducing the UN Guiding Principles for Business and Human Rights: https://youtu.be/BCoL6JVZHrA - 'UN Guiding Principles for Business and Human Rights' (attached and here: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.… ) - John Ruggie report on FIFA (relevant because it applies the Ruggie principles to a not-for-profit organization) (attached and here: https://www.hks.harvard.edu/content/download/79736/1789834/version/1/file/R… 4. Prepare an analysis of the different Guiding Principles of the Ruggie Principles based on their relevance for ICANN (all - under the lead of Paul Twomey, Tatiana Tropina, Greg Shatan, Bastiaan Goslings, Andrew Mack, Paul McGrady) https://docs.google.com/document/d/10XMIVosuEfgmXwr7SQjeNLKI8r_hdONrJNV2ih7… 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 #4 | 6 September
by MSSI Secretariat Sept. 6, 2016

Sept. 6, 2016

Hello all, The notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #4 - 6 September 2016 will be available here: https://community.icann.org/x/DRKsAw A copy of the 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 * Cheryl Langdon-Orr currently only on phone. * Nigel Roberts Excused. * No changes to SOIs. 2. Discussion on: the Summary on what was agreed and discussed on human rights during WS1 https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNM… * Tatiana Tropina: document essentially completed. * David McAuley: I just lost my phone - will change - in meantime I was present in WP4 and have read document Tanya is speaking about and have no issue with it, * Anne Aikman-Scalese: Agree with those on the list who have remarked that the definition of "respect" is a very important part of developing this FOI. * Niels ten Oever: Comments on the document as is? * Kavouss Arasteh: We should never approve anything in one meeting especially given this short notice. * Niels ten Oever: We will leave the document open for comments in the coming week and seek approval at our next meeting if there are no significant issues. 3. Discussion on: Concerns on possible impacts of Human Rights bylaw and FoI https://docs.google.com/document/d/1KcKGRJjuhKEzCh2AZ8PPR_MofOQFBN8CMuJqTG_… * Niels ten Oever: Paul Twomey is still unavailable and as such the document has not advanced much. * Greg Shatan: We need to have a plan as to how to add to this document and organize it. * Kavouss Arasteh: Can we have the document on the screen. We seem to still be struggling with respect vs enforcement. * Andrew Mack: same concerns as KA. * Tatiana Tropina: the bylaws clearly state we cannot put in enforcement or protection. Some parts of Ruggie go to enforcement. * jorge cancio (GAC Switzerland): As the Ruggie principles are recognized as a standard, we would need to clearly explain when and why we would diverge from them in this in the FoI * Greg Shatan: We have to be careful not to stumble into default enforcement. * Kavouss Arasteh: Need to avoid enforcement. * David McAuley: I agree with GS and TT. If we develop something we are not developing policy we are interpreting the bylaws which requires us to RESPECT Internationally recognized HR - this is very specific. * Tijani Ben Jemaa: There is no mention of enforcement in the remit of WS2 for HR. this would be widening the scope and is not acceptable. * Tatiana Tropina: Greg, I wonder if there is a transcript. We agreed in the WS1 to treat Ruggie with care but it seems that it comes up again and again. So may be finding the discussion makes the things easier (I am afraid to use the word "easy" now) * Jorge Cancio (GAC Switzerland): agree that we are here for an "interpretation" exercise, not a policy development * Greg Shatan: Thanks, Niels. I see it is an implementation for FIFA. How ironic. * Markus Kummer: +1 - for sure. But we have to analyze why and where the Ruggie Principles don't apply to ICANN. * Tatiana Tropina: Niels, ICANN is not like other non-profit too. there is already the cctld debate on the doc - as one of the points * David McAuley: We should not assume that the Ruggie principles will be included in an HR FOI until we all agree on which parts apply. * Tatiana Tropina: Completely agree. Need to wait for Paul Twomey who has significant experience with the Ruggie principals. * Tatiana Tropina: Markus, exactly. One of the points I already voiced - in my opinion they do go to enforcement and protection (Ok, mitigation and remedies) and many of these ICANN can't do * Jorge Cancio (GAC Switzerland): The Mission sets the limits to ICANN actions - insofar ccTLDs are concerned, ICANNs role is very limited * Anne Aikman-Scalese: Unfortunately the Ruggie definition of "respect" appears to implicate ICANN in content regulation. * Markus Kummer: +1 David * Kavouss Arasteh: If we are to include the Ruggie principles it should be a consensus of this group. * David McAuley 2: +1 Tanya, and Paul Twomey's insights as a prior ICANN CEO will be quite helpful * Jorge Cancio (GAC Switzerland): It would certainly see Paul Twomey's comments again and consider them in light of the wording given to the commitment in the new Bylaws (...as a "core value") * Tatiana Tropina: Ruggie shall be out unless we decide they are in... Agree that we shall not discuss for a long time about their applicability since we decided not to commit to them :) * Greg Shatan: Agree with DM and TT that Ruggie principles are out until they are in. Given the lack of other input we need to find alternatives? or do we have to start from scratch. If we do start from scratch, then we have to give a nod to the Ruggie principles. FIFA definition of respect seems very active and bordering on enforcement? * Kavouss Arasteh: we should not discuss Enforce or Protect going forward. * Niels ten Oever: we should look at the Ruggie principles. * Tijani Ben Jemaa: Participants should look at the Ruggie principles and given their input on the list as to what is applicable and what is not. * Niels ten Oever: we need to analyze the Ruggie Principles to see how they could apply, or not, to ICANN. Who would take on doing the first cut of the analysis? * Tatiana Tropina: Hm, Niels, no, I think co-chairs shall put the doc on and then we all comment * Tatiana Tropina: I don't think there would be a lack of comments! Rather I perceive an unreadable mess * Niels Ten Oever: PM and TT on point for this. Everyone should familiarize themselves with the Ruggie principles before the meeting next week. 4. Discussion on FoI draft document https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVnkBYUO… * Niels ten Oever: Mostly covered in the previous point and on the list. As such we shall skip this point today. 5. AOB * Niels ten Oever: review of agenda for the next meeting. * Kavouss Arasteh: Can we have an updated version of the plan and when there are meetings schedule. * Tijani Ben Jemaa: Please send links and documents on the list so everyone can familiarize themselves with those documents for our next meeting. * Niels ten Oever: Adjourned.

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Re: [Ws2-hr] Proposed Agenda Call Sept 6 19:00 UTC
by Rudolph Daniel Sept. 6, 2016

Sept. 6, 2016

Excuse I am absent....meeting clash. RD On Sep 6, 2016 8:51 AM, "Kavouss Arasteh" <kavouss.arasteh(a)gmail.com> wrote: Dear Mr. Niels ten Oever, Thank you very much for the materials that you have extracted either from WS1 WP4 or from Two CCWG Recommendations. Some distinguished colleagues quite knowledgeable and qualified wish to reopen the extensive discussions that we have had at WP4 and at CCWG WS1in an attempt to have a new round of discussion on the matter whereas our terms of reference is limited to the parts included in one of the background material that you have provided ,namely 1. to consider which specific Human Rights conventions or other instruments, if any,should be used by ICANN in interpreting and implementing the Human Rights Bylaw. 2.to consider the policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfill its commitment to respect Human Rights. 3.consistent with ICANN’s existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process. 4-to consider what effect, if any, this Bylaw would have on ICANN’s consideration of advice given by the Governmental Advisory Committee (GAC). 5.to consider how, if at all, this Bylaw will affect how ICANN’s operations are carried out. 6.to consider how the interpretation and implementation of this Bylaw will interact with existing and future ICANN policies and procedures”. It should be emphasized that the Framework of Interpretation is to be developed “to ensure that adding the proposed Human Rights Bylaw provision into the ICANN Bylaws does not lead to an expansion of ICANN’s Mission or scope” Moreover, it is clearly stated in the Report of CCWG,WS1 that The proposed draft Bylaw on Human Rights would reaffirm ICANN’s existing obligations within its Core Values, and would clarify ICANN’s commitment to respect Human Rights. We therefore should avoid using other verb such as " Protect" or " enforce" or any other verb instead of " respect" .Similarly ,we do not need to interpret what we mean by to respect as the term respect is a known term and needs not to be described nor to be interpreted In addition, it was emphasized that The bylaw will not expand ICANN’s narrow scope and mission We should avoid to convert this sub group activities to a Philosophical, Psychological, and research activities. We are neither the UN General I hope you will lead the group in order that it remains within its limited trams of reference and just answer those questions raised above, Best Regards. Arasteh 2016-09-06 0:19 GMT+02:00 Niels ten Oever <lists(a)nielstenoever.net>: > Dear all, > > Please find underneath and attached the proposed agenda for our call of > Sept 6 19:00 UTC. > > Also please find attached a rather advanced version of the document > mentioned under agenda point 2, the summary of the Human Rights work > under Workstream 1. > > 1. Administrivia > Roll call, absentees, SoIs, etc > 2. Discussion on: the Summary on what was agreed and discussed on human > rights during WS1 > https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPO > mYwmdr5B1_M_aNMoZb4/edit?usp=sharing > 3. Discussion on: Concerns on possible impacts of Human Rights bylaw and > FoI > https://docs.google.com/document/d/1KcKGRJjuhKEzCh2AZ8PPR_Mo > fOQFBN8CMuJqTG_h9h4/edit?usp=sharing > 4. Discussion on FoI draft document > https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7 > lxcFKUBHVnkBYUOsA2Q/edit > 5. AOB > > ICANN staff informed me that they are working on providing more real > time collaboration methods, but currently they do not offer such > services. So until that time I am afraid we are stuck with Google Docs. > > As always feel free to suggest addition or changes to the points above. > > > 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 > > _______________________________________________ > Ws2-hr mailing list > Ws2-hr(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-hr > > _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

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latest version of our working documents in docx
by Niels ten Oever Sept. 6, 2016

Sept. 6, 2016

Dear all, Please find the latest versions of our working documents attached as docx. Apparently it is impossible to export the documents including comments as PDF, hence they are sent here as docx. Of course you can also see them at the google doc links as shared in the agenda. 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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Proposed Agenda Call Sept 6 19:00 UTC
by Niels ten Oever Sept. 6, 2016

Sept. 6, 2016

Dear all, Please find underneath and attached the proposed agenda for our call of Sept 6 19:00 UTC. Also please find attached a rather advanced version of the document mentioned under agenda point 2, the summary of the Human Rights work under Workstream 1. 1. Administrivia Roll call, absentees, SoIs, etc 2. Discussion on: the Summary on what was agreed and discussed on human rights during WS1 https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNM… 3. Discussion on: Concerns on possible impacts of Human Rights bylaw and FoI https://docs.google.com/document/d/1KcKGRJjuhKEzCh2AZ8PPR_MofOQFBN8CMuJqTG_… 4. Discussion on FoI draft document https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVnkBYUO… 5. AOB ICANN staff informed me that they are working on providing more real time collaboration methods, but currently they do not offer such services. So until that time I am afraid we are stuck with Google Docs. As always feel free to suggest addition or changes to the points above. 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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