February 2017 - Ws2-hr - lists.icann.org

Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC
by Niels ten Oever March 1, 2017

March 1, 2017

Dear all, It is with great pleasure that I can share with you the draft agenda for the meeting of February 28, 19:00 UTC. The drafting group worked hard after the constructive session last week. With this document we might have arrived at a new milestone. I am very much looking forward to have a first reading of the Considerations document with you in the call. As previously discussed, the Consideration document will be merged into one document with the FoI upon approval by the subgroup. I am greatly looking forward to discuss this with you on the call. Please find the proposed agenda underneath and attached, as well as the document. 1. Administrivia Roll call, absentees, SoIs, etc 2. First reading (of two) of the Considerations document prepared by the drafting team 3. AOB The document can also be found here: https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AIt… Please let me know if you have any question or suggestions. 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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Re: [Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC
by Aikman-Scalese, Anne March 1, 2017

March 1, 2017

Hi Niels, Thanks for sending this out. I have four comments: 1. RUGGIE PRINCIPLES: I don't recall a consensus in the drafting group regarding the statements about the UN Guiding Principles. 2. THE NEED TO BALANCE CONSIDERATIONS AMONG HUMAN RIGHTS ONE IN RELATION TO ANOTHER. I don't recall any response in relation to my continued insistence on the principle that each SO and AC will need to take into consideration an equitable balancing of Human Rights in addition to taking into a balancing of the Core Values. I will once again show where I made the suggested change in the text in red below point #4. 3. “COMMITMENT” AS A TERM OF ART IN THE BYLAWS: It was agreed on a previous call that the term "commitment" is a term of art in the ByLaws and thus we need to refer to “Core Value” or “obligation” rather than "commitment" when referring to Human Rights. Once again, this is about making the obligations of the Board of Directors very clear. Language is important in the context of possible Requests for Reconsideration or IRPs around Board-adopted policy that may be alleged to violate this ByLaw. Perhaps there is a simple typo: the margin language in at least one section of the draft still refers on the left hand side to "commitment". This word should be changed to “obligation”. 4. RECOURSE AGAINST THE BOARD IN RELATION TO ALLEGED VIOLATION OF THE HUMAN RIGHTS BYLAW – RFR or IRP or BOTH? In relation to the Annex 12 questions, I am not sure the group has actually fully discussed whether and how a challenge of not complying with the Human Rights ByLaw may be made against the Board of Directors? Have we fully considered and discussed whether a Request for Reconsideration or Independent Review Process is available to the Community here? If it is, what are the implications for ICANN’s processes and procedures? (In this regard, I think a First Reading is premature.) Below I paste once again a recommendation (change shown in red) that I have asked several times be considered and discussed in the group. (Or perhaps I missed this discussion?) The Board will necessarily have to do such balancing in its own adoption of policies impacting Human Rights. Therefore, we should not ignore this additional balancing exercise that must go on. "Each SO and AC should take the Core Value into consideration in its policy development or advisory role. It is up to each SO and AC, and ICANN the organisation, as applicable, to develop their own policies and frameworks to fulfill this Core Value. In doing so, the SOs and ACs, as well as ICANN the organization, should also take into account the requirement to balance the Core Values, as well as the need to balance the various Human Rights considerations, one in relation to another, in the policy-making process." Thank you, Anne The policies and frameworks, if any, that ICANN needs to develop or enhance in order to fulfill its obligation to respect Human Rights In order to put the Human Rights bylaw into practice, ICANN the community as well as the organization will need to consider how to reflect this Core Value in its policy and operation processes. Each SO and AC should take the Core Value into consideration in its policy development or advisory role. It is up to each SO and AC, and ICANN the organisation, as applicable, to develop their own policies and frameworks to fulfill this Core Value. In doing so, the SOs and ACs, as well as ICANN the organization, should also take into account the requirement to balance the Core Values, as well as the possible need to balance Human Rights considerations in the policy-making process. 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 -----Original Message----- From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Monday, February 27, 2017 5:15 PM To: ws2-hr(a)icann.org Subject: [Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC Dear all, It is with great pleasure that I can share with you the draft agenda for the meeting of February 28, 19:00 UTC. The drafting group worked hard after the constructive session last week. With this document we might have arrived at a new milestone. I am very much looking forward to have a first reading of the Considerations document with you in the call. As previously discussed, the Consideration document will be merged into one document with the FoI upon approval by the subgroup. I am greatly looking forward to discuss this with you on the call. Please find the proposed agenda underneath and attached, as well as the document. 1. Administrivia Roll call, absentees, SoIs, etc 2. First reading (of two) of the Considerations document prepared by the drafting team 3. AOB The document can also be found here: https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AIt… Please let me know if you have any question or suggestions. 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 ________________________________ 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.

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 22 | 28 February 2017
by MSSI Secretariat Feb. 28, 2017

Feb. 28, 2017

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #22 here; https://community.icann.org/x/K6vRAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) [id:image001.png@01D28DF5.EF27C2B0] Notes (including relevant portions of the chat): 14 Participants at start of call 1. Administrivia - Roll call, absentees, SoIs, etc Apologies: Jorge Cancio, Herb Waye, Mathew Shears Niels ten Oever - Audio only? (AAS). Any update to SOIs (none). May of been premature to call this a first reading but if we agree today it would allow us to have a meeting next week to have a second reading to submit to the plenary. David McAuley (RySG): are we meeting next week? Paul McGrady: Not everyone is going to make it to the face to face due to the way the meeting schedule turned out Kavouss Arasteh: There is no Plenary before Copenhagen Anne Aikman-Scalese: Next week Tuesday meeting would be hard for those travelling from far. Tatiana Tropina: I put red tick as while I think it would be good, I am very much against excluding those who can't make this call next week Greg Shatan: That will also be too late to submit a document for the Plenary. Tatiana Tropina: Greg, yes. Kavous Arasteh: There is no meeting scheduled for next week and my points have not been addressed. Niels ten Oever - temperature check to have a meeting next week (no support). Ok will advise Co-Chairs that we will not have a document for the face to face. Tatiana Tropina: this is of course sad but we can't compromise on the quality and inclusion :-) Niels ten Oever - should we look at the JC document or my version? Kavouss Arasteh - I have also sent a revised version why is not being considered? Niels ten Oever - KA your comments have already been integrated in the document. Anne Aikman-Scalese - I have not seen it so if we use it can you be specific. 2. First reading (of two) of the Considerations document prepared by the drafting team Tatian Tropina - (reading document). Paul McGrady - could we deal with one para at a time. On para 1 seems inconsistent. No definition of DECLERATION. Now we have OTHER INSTRUMENTS which are also undefined. Then we get into COVENANTS which is also undefined. We need to clean this up and call it one thing consistently throughout the document. Greg Shatan: Maybe we should use "conventions and other instruments" as used in the "consideration". Tatian Tropina - PM thanks this is very useful. If we use the language from Annex 12 would this meet the requirement. Paul McGrady - The definition can be broad we use anything we want and then use it consistently it will be fine. Tatiana Tropina: But for the substance we use the "HR conventions or other instruments" as in the Annex 12 Niels ten Oever: But for interpretation we might also use UDHR, no? Kavouss Arasteh - Agree with PM but still have issues with the first para given agreements are one thing but declarations are something else - you cannot mix these things as states have not agreed to all these things - maybe just drop the first sentence. Tatiana Tropina: that this means declarations, conventions, Bills, etc widely agreed internationally avri doria: Since none of it is binding on ICANN, it really does not matter who signed or implemented. Paul McGrady: Human Rights conventions, agreements, declarations, conventions, covenants, and instruments (collectively "Human Rights Documents") Paul McGrady: +1 Avri Tatiana Tropina: Paul, inserting this in the google doc - thanks much much! Niels ten Oever - good suggestions for the drafting team. Greg Shatan: "Documents" seems a bit too generic -- I would prefer that we use "conventions and other instruments" each time. Markus Kummer: "internationally agreed human rights instruments" ? Tatiana Tropina: Greg, that's what I suggested while speaking, but we can fine tune for the next call avri doria: i like conventions and other instruments as well Paul McGrady: (collectively "Human Rights Cannon") Tatiana Tropina: we have to follow the language of annex 12 but still implement Paul's corrections Niels ten Oever: "States are parties to these document" Markus Kummer: instrument is the usual overarching term used in international law Greg Shatan - Need to reflect that whatever we define is aimed at States. Tatiana Tropina - lets put all the comments in the Googledoc and the lawyer it up to make consistent. Kavouss Arasteh - You cannot use INSTRUMENTS sometimes this is more than conventions or not. Still suggest we drop the first part. Avri Doria - Irrelevant how many states have agreed to these things does not matter since they are not applicable to ICANN. Greg Shatan: +1 Avri. Paul McGrady: +1 Avri Tatiana Tropina: + 1 Avri - very much to the point. Janet Shih Hajek: Instead of Human Rights conventions are agreements between states,” why not just start with “ICANN, as a non-state private party, is not a party to any Human Rights convention or other human rights instrument. However, ICANN could refer to any of the widely adopted Human Rights conventions and other instruments . . . “ Tatiana Tropina: there is nothing all countries Kavouss Arasteh: Disagree with AD, agreed with states causes problem need to fix. Tatiana Tropina - (reading next section). Not happy with JC proposed language but can live with it. David McAuley (RySG): Agree w/Tatiana on this Kavouss Arasteh - do not agree with JC language. Greg Shatan - KA proposal not much different and we can replace CONSENSUS with AGREEMENT. Tatiana Tropina: yes this should be fine. It makes no big difference for me, but if it's very critical for someone let's replace Paul McGrady - do not understand how the second and third paras fit together. I think we were considering if they were binding and para should say it is not. Para 3 just says what we say in para 1 but only about 1 thing. Para 2 needs to be stronger and there does not seem to be a reason for para. Tatiana Tropina - the problem is because of the definintion of UN guidance on HR for Business. As to para 2 the recommendation has been watered down to have a compromise because some people still think they should be binding. David McAuley (RySG): I think paragraph 2 is fine and accurate David McAuley (RySG): And agree w/Tatiana that the language was crafted with compromise in mind Paul McGrady: @Tatiana - thank you. That discussion is helpful and explains why we need paragraph 3. Kavouss Arasteh - tend to agree with PM. If you want to maintain para 3 it should be before para 2. But do not favour keeping para 3. If kept should be reworded to show there is not consensus on the matter. Greg Shatan: Paras 2 and 3 deal with interpretation and implementation of the Guiding Principles, respectively. Paul McGrady: Once we ake it clear that Guiding Principles are not part of the Human Rights Documents contemplated in paragraph 1, I think paragraph 3 makes sense now. avri doria: para 3 is important and it is the saving grace of the section. Paul McGrady: @Avri - :) Anne Aikman-Scalese - We need to be clear for the Board on the Ruggie principles other it will be a recipe for trouble. Taiana Tropina - 3rd para was a compromise from the last version. Would be happy not to have it but it would probably cause an issue so we will keep it and fix it. David McAuley (RySG): The interpretation of the bylaw cannot undo the bylaw – it will be binding if it is international recognized under applicable law – that may differ from place to place Greg Shatan - Have looked up HR Instruments do not include Ruggie and would suggest that para 2 and 3 are out of scope. avri doria: and time to time David McAuley (RySG): agreed, @Avri Niels ten Oever: UNGPs are a softlaw instrument Tatiana Tropina: oooooooohhhh that's too radical even for me. Kavouss Arasteh - if we drop para 3 then we can drop 2 also. Guiding cannot be binding. Tatiana Tropina: Wow, I find myself in disagreement with Greg, finally! :-) Niels ten Oever: https://en.wikipedia.org/wiki/United_Nations_Guiding_Principles_on_Business… Niels ten Oever: And Kavouss and Greg aligned avri doria: deletion of Ruggie comes close to some of our die in the ditch regions avri doria: a UN agreed doc is in scope! Paul McGrady: To say nothing about it after all this work on it, doesn't seem productive. Greg, can you find another place in this document to address the Guiding Principles? David McAuley (RySG): We should address Ruggie as not reaching consensus - we spent considerabl;e time on it Tatiana Tropina - As AD has stated Ruggie principles will be die in the ditch for some. It may be best to actually deal with this in the document because it would create ambiguity going forward Niels ten Oever: Then Paul asked a question, we explained, and now everything is up in the air Niels ten Oever: am a bit surprised avri doria: i think the 3 para is the right solution avri doria: there was a sophistic twist on the matter of scope. but denying scope to an UN aggreed document in scope abuse. David McAuley (RySG): I agree w/Niels on this - the language was carefully put together Greg Shatan - My suggestion to remove the paras has nothing to do with Ruggie but rather simply if it is in scope or not. Tatiana Tropina: I think it should be treated with caution instead of leaving the things blank. remember the jurisdiction debate. Niels ten Oever: Ruggie is an instrument - there is no doubt about that Tatiana Tropina: David, yes. And the Ruggie principles is like elephants in the room Tatiana Tropina: we don't have to redefine terms instruments but we have to note that they are not instruments. Yes, seems like a good suggestion avri doria: here we go again. Tatiana Tropina: Agree with David's last comment Tatiana Tropina: We can't ignore Ruggie, this will be reopened at one point and we have to deliver. Paul McGrady: "could be" is not "must be" Kavouss Arasteh - We do not use Ruggie to interpret the Bylaw - we can use it to interpret Human Rights. What is the definition of a HR Core Value? Paul McGrady: Let's add the caveat and save the hard work we have done on dealing with Ruggie. Tatiana Tropina: Oh I would be happy with deleting the para 3 but many will die in the ditch for this Greg Shatan: We are calling it the "Human Rights Core Value." Greg Shatan: Core Value is singular and refers only to that Core Value that refers to human rights. Tatiana Tropina: Paul, this seems like the best solution. And yes, the text has to be clarified. As I said already in all the fights about the substance we are sometimes paying more attention to compromise than the quality and clarity of the explanation Greg Shatan: Core Values is plural and would refer to all the Core Values. Kavouss Arasteh: Greg, it is wrong to call it Core Value Tatiana Tropina: Paul has been our reality check - thanks so much Paul. Greg Shatan: That is exactly what it is. Kavouss Arasteh: Why you wish to generalize it to cover all core values Tatiana Tropina: Avri, we have to mention them. I agree - being an opponent of Ruggie. Paul McGrady: We need to tell the plenary about the work we did on this. We can't just leave it blank... Avri Doria - going at this again. Trying to use the definition to get Ruggie out is not valid. As such disagree with this. Tatiana Tropina: Avri, yes. The para is carefully crafted consensus and we have to leave it there (may be fine tune) David McAuley (RySG): Bylaw 27.2(a) says: The Core Value set forth in Section 1.2(b)(viii) shall have no force or effect unless and until a framework of interpretation for human rights ("FOI-HR") ... Tatiana Tropina: I do dislike saying this because I was against the para 3, but I think we have to take this into consideration Niels ten Oever - should go back to the drafting group. Adjourned.

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Practical Meaning of Involvement in the UNGPs
by Niels ten Oever Feb. 27, 2017

Feb. 27, 2017

Dear all, This new paper might be of value for discussing and considering the Ruggie Principles, because it exactly aims to be 'exploring the practical meaning of cause, contribute, and directly linked' in the Ruggie Principles. Some of these concepts have played an important role in earlier discussions and I thought this might be of your interest. http://www.enodorights.com/assets/pdf/debevoise-enodo-practical-meaning-of-… Happy reading! 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 # 21 | 21 February 2017
by MSSI Secretariat Feb. 21, 2017

Feb. 21, 2017

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #21 here; https://community.icann.org/x/85vRAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) Action items · Participants to review FOI Google doc, include suggestions and discuss points on the list. Notes: (Incl relevant portions of chat) 18 Participants at start of call. 1. Administrivia Roll call, absentees, SoIs, etc Niels ten Oever - No audio only. No changes. Mark Carvel and Jorge Cancio have input from the UN group on Business and Human Rights and I would ask if ok for them to present (no objections). will invite them to one of our future calls to present. Tatiana Tropina: what exactly would be the benefit of this? Are they aware what we are doing? Are they familiar with ICANN? Tatiana Tropina: or are the Ruggie salespersons? Sorry for being harsh 2. Discussion of work-in-progress considerations document by drafting team (Review of the FOI document - Greg Shatan presenting 3 options) https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AIt… avri doria: Strong support for proposal 2 Tatiana Tropina: I don't know if "I don't know whether alleged by some" is an appropriate text for such a document Tatiana Tropina: I think proposal 1 and 2 can be combined to some extent but we have to be clear that the group hasn't reach an agreement whether to recommend Ruggie Mathew Shears - Want to reinforce point made my GS - have to be careful how this is written. Options should be placed above the statement. Niels ten Oever - MS could you expand on your views of the 3 options. Mathew Shears- Really uncertain ADOPTION is the right word. Have to be careful in these options. Tatiana Tropina: No but to make the second para in the FoI we have to really consider Tatiana Tropina: because I wonder where this consideration that they are useful is coming from? Have we agreed on that? David McAuley (RySG): Thanks Matthew, fair points Tatiana Tropina: I mean have we really considered? And this actually goes together with what Matt is saying Kavouss Arasteh - COULD be used as a guide is correct - this has been discussed over and over - but I do not agree with ADOPTION. We should not keep going over things that are done. matthew shears: these 3 proposal are fraught with difficulties matthew shears: yes, we have been here before ... avri doria: "could be used as a guide" works for me. but i am more than happy to explore a multitude of wordings. Tatiana Tropina: I strongly disagree Erich Schweighofer: Kavous Arasteh is right - Ruggie is for commercial companies. Tatiana Tropina - three people from the drafting team were not on the call to raise the issues. Disagree with KA, not all members of the drafting team were present which has caused issues. avri doria: no it is for companies. Greg Shatan: People from different stakeholder groups, I may add. avri doria: perhaps more pointed to the commercial affairs. and we cannot deny that ICANN is involved in commerce. it just does it 'not for profits’. but commerce it is. Erich Schweighofer: No public purpose ...? Kavouss Arasteh - Tatiana, pls do not impose your views avri doria: ... is invovled in in commerce ...public purpose is the reason. commerce is the method. Tatiana Tropina - ICANN can in the future agree to follow the Ruggie principles - but our group has not reached agreement on this. But the group has to have the discussion. Greg Shatan - Agree in large part with TT - we have not reached agreement. Have we completed the discussion - probably not - but we cannot buy the Ruggies principles wholesale - maybe some subsets - but some parts are certainly unapplicable and possibly against ICANN's mission and this goes beyond the scope of this group. Niels ten Oever: It's not like we never discuss this. Tatiana Tropina: we have to have at least the discussion on the option 1 or 2 we never had a discussion whether we have this conclusion or not exactly so I don't agree with having a sentence just because it sounds nice. matthew Shears: I would argue given the differences of opinion and interpretation it is to early to make a commitment of sorts to Ruggie - it may be that this is addressed in the future as we have also discussed in the past Tatiana Tropina - I agree that we can say thay ICANN org or community can decide for themselves what to do with Ruggie we have to be crystal clear that this group agreed or disagreed upon. I am not against Ruggie if ICANN wil decide to commit. Fine. Avri Doria: well they have to be guided by the ones that are inappropriate. there is no binding, just a guideline, somethog to get a clue from. Kavouss Arasteh - If some people did not attend, it may be wrong that that opposed to what has been agreed at the meeting in which several people attending avri doria: well they have to be guided by the ones that are inappropriate. there is no binding, just a guideline, something to get a clue from.[they do not have be guided by ... Tatiana Tropina: Avri, I am fine with the sentence that we advise to consider if the find this necessary David McAuley: I would add my voice to saying we have to be very careful how we refer to the Ruggie principles. these are simply guidelines as stated in the Bylaws. Tatiana Tropina: Avri, I am fine with the sentence that we advise to consider if the find this necessary fine. Why not. But let's not confuse anyone with what we agreed upon and what we considered Kavouss Arasteh - Secretatriat , pls also include my comments like other comments avri doria: /9on the notes, there was a not missing in my first sentence) Greg Shatan: And that's why significant points should not be decided at a single meeting. Otherwise, people could schedule meetings at a time when people are engaged in other ICANN-related meetings and unable to attend, and use that to jam minority positions through. Tatiana Tropina: David, agree! A very good point. ICANN can consider Ruggie but we certainly can't decide for them and we haven't agreed what is useful avri doria: agree not binding. Kavouss Arasteh - If people do not attend a meeting where things are decided you cannot come up after to change things. So do not agree with TT. Suggest use COULD BE USED WHERE APPLICABLE. We are not charged with any ADOPTION. Cheryl Langdon-Orr (CLO): I thought that we worked under that principal Greg Tatiana Tropina: They have some strong language Greg Shatan: Sorry for the duplication, didn't even know that could happen! matthew shears: there is nothing to stop discussion of ruggie occuring in the future Tatiana Tropina: and any language which is vague can still be used to go outside the limits Tatiana Tropina: Matt +1 avri doria: ( greg been happenin to me too - did not understand how it happened ) Tatiana Tropina: it is appropriate when people didn't raise any issues we are raising them now avri doria: decsions are not made in one meeting, i thought David McAuley (RySG): disagree respectfully w/Kavouss - if a person misses one meeting they should still be able to be heard Tatiana Tropina: Especially if the person was trying her best to draft and raise issues John Laprise: Strongly disagree with Kavous. We want a strong output document. Period. Tatiana Tropina: We can't rush compromising the quality John Laprise: agreed Tatiana. Kavous: we're not in the UN we're volunteers working on Internet governance policy. avri doria: i thought we were working toward consensus as much as possible and nothing is decided until everything is decided. and that is by the plenary not us. matthew shears: + 1 Tatiana Cheryl Langdon-Orr (CLO): certainly we take that as rule for my WT and all other groups in ICANN I work with Avri Tatiana Tropina: if we are to go for the option 2, we have to consider it not as a sentence but content wise Greg Shatan: Agree with Avri & Cheryl. And with Niels position on where we are and the two readings rule. matthew shears: yes Niels ten Oever: As TT and MS have said there may be a combination of options 1 and 2 which could work. matthew shears: yes Tatiana Tropina: only if we consider option 2 properly Kavouss Arasteh - Avri, if you want to make a principle of "i thought we were working toward consensus as much as possible and nothing is decided until everything is decided. and that is by the plenary not us.- pls submit your views to CCWG Plenary avri doria: Kavouss, not me. I thought that was the modality we worked by. Kavouss Arasteh - Not at all avri doria: and ICAN Consensus not Full Consensus Cheryl Langdon-Orr (CLO): yup Kavouss Arasteh - who agreed with that modality - is it in the charter? avri doria: of WS2? avri doria: i thought so. Greg Shatan: I cannot agree with general support for the Ruggie Principles. matthew shears: proposal 1a and 2 wil need some serious massaging and would need to be future oriented - the first para of proposal 1 stands as a separate statement of fact David McAuley (RySG): Well put Greg that RP is not a banned book and not THE guide Tatiana Tropina: If we adopt Option 2 we have to mean it and we have to be very clear on what we are agreeing to - need to discuss properly - will support any consensus. matthew shears: its a marriage that will need a lot of work avri doria: I think Tatiana concern is premature Niels ten Oever: Might also be interested to hear the UN WG about this Kavous Arasteh - Cannot say Ruggie Principles are completely inapplicable. this has been discussed. Tatiana Tropina: it was discussed and we never agreed it was applicable Tatiana Tropina: if we agree - fine. I am fine. I am against the sentence without a proper consideration. Greg Shatan: The Ruggie Principles are most certainly not "applicable law." Tatiana Tropina: no, they are not applicable law David McAuley (RySG): +1 Greg and Tatiana Niels ten Oever: No, they are a soft-law instrument. avri doria: my point was that is is premature to worry about the details of Ruggie. It is a guide for those doing commerce. anyone using it will have to take into account all thr restraints of the bylaws and not use it inappropriately. to do that up front seems premature. Tatiana Tropina: I think it is as premature as recommend to include the sentence only because we like how it is written proposal two hasn't got enough consideration it’s still a proposal. And we for now just consider it as a sentence, a text. Greg Shatan: First ws have to discuss whether it could be useful. Tatiana Tropina: Yes. If we write this we have to discuss this. yes exactly - not all are useful, right? why are we writing they are all useful? Kavouss Arasteh - Use Could, would etc. Saying not applicable is not good - this has been discussed many times. Tatiana Tropina: I think Kavouss is very close to the truth - under sertain circumstances if so decided by ICANN org, board or community Niels ten Oever: @Kavouss - added to the GoogleDOC Tatiana Tropina: depending on the case Greg Shatan - We cannot recommend the Ruggie Principles wholesale - some may be useful. This is a decision for another time - which could be useful or appropriate under what circumstances. Lets not go through them one by one. matthew shears: we are interpreting and implementing the bylaw. as to whether it is useful for interpreting we have discussed and that we could not agree. there is nothing to prevent them being revisited in the future and we could address them in that context Tatiana Tropina: Greg what if we leave the decision whether to use them as a guidance to those who want to use? ICANN org etc matthew shears: we are not ruling them out Tatiana Tropina: with careful consideration I also don't think so - it's not our task. But we have to be clear that it's up to them to decide and that we couldn't agree matthew shears: + 1 Greg Niels Ten Oever - GS proposal sounded like a good compromise - could you put this in the Google Doc? Kavouss Arasteh - Tend to agree with last statement of GS - Certain principles could be used for guidance under certain circumstances. This would work and leave it at that. Tatiana Tropina: +1 greg avri doria: except for the 'under any circumstance' goes too far let the future decide what fits the bylaws not us Tatiana Tropina: we didn't suggest to say it wasn't applciable. we suggested to say we couldn't recomment and that's not up to us to decide David McAuley (RySG): agree with Greg - RP is not to be "recommended" but can/may be a guide in appropriate circumstances that might help ICANN discern what it ought to do under bylaw constraints Tatiana Tropina: other than that. agree with Greg David, and it should be their decision, not ours - the applicability Avri Doria: yes Tatiana Matthew Shears: agree David McAuley (RySG): exactly - we cannot peer into the future for ICANN, thay must abide by bylaw in the day Niels ten Oever: Positive is nice Cheryl Langdon-Orr (CLO): the proposed text when captured then of course needs to go to the list for wider review and then discuss in our next meeting Tatiana Tropina: I am not against I am just against blank decisions and recommendations. If ICANN decides to use Ruggie I would be only welcoming this. Well, if they decide with careful consideration :-) avri doria: whereas the guidelines should still guide Niels ten Oever - Sounds like a possible compromise. Can we move to other parts of the text in these last few minutes of the call. Lets share this language and have two readings of it to confirm consensus. David McAuley (RySG): agree w/CLO Tatiana Tropina: agree with Cheryl, too Markus Kummer: there is room for some creative drafting! Tatiana Tropina: this is not finished and we have to redraft and re-discuss to make everyone happy - Markus, there is always the room... last week it was Hilton breakfast room ;-) for three of us Tatiana Tropina - for the policy framework part - change operationalize to PUT IN PRACTICE etc. (review of document). Each SOAC should take this into consideration individually. Balancing important. David McAuley (RySG): I think the word "commitment" (last word penultimate sentence) ought to be "core value" Niels ten Oever - please look at the document and comment on the list. I will propose to present where we are in Copenhagen at the plenary tomorrow as we will not have consensus by then. Kavouss Arasteh - What is TT proposing? Niels ten Oever - a work in process but we are progressing. Lets hope we can continue to do this going forward. Talk next week. Adjourned. Decisions – none

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Proposed Agenda February 21 19:00 UTC
by Niels ten Oever Feb. 21, 2017

Feb. 21, 2017

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. Discussion of work-in-progress considerations document by drafting team 3. AOB Please find also attached the current version of the work-in-progress considerations document, which at this moment is a rough sketch for discussion in the drafting group. It can also be found here: https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AIt… I'm greatly looking forward to talk to you all tomorrow. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 2458 0B70 5C4A FD8A 9488 643A 0ED8 3F3A 468A C8B3

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Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 20 | 14 February 2017
by MSSI Secretariat Feb. 14, 2017

Feb. 14, 2017

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #20 here; https://community.icann.org/x/6LPDAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) Action item * Everyone should keep working on the document. Notes: (Including relevant portions of chat): 13 participants at start of call 1. Administrivia - Roll call, absentees, SoIs, etc Niels Ten Oever: No phone only. No apologies received no updates to SOIs. Any updates to the agenda (none). 2. Discussion of work-in-progress considerations document by drafting team Niels ten Oever: Work in progress: https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AIt… Niels Ten Oever: (going through the document from the top). “Which Specific HR conventions or instruments....” - Use GUIDE vs Operationalize at the bottom. David McAuley: thanks to NTO for a good editing of the document. Niels Ten Oever: Next part - "Policies and Frameworks" - again GUIDE vs Operationalize. (no comments). Rudi Daniel WS2 HR: sounds good so far Niels Ten Oever:"Consistent with ICANN's existing..." - Getting into the weeds here David McAuley (RySG): This section seems fine to me Rudi Daniel WS2 HR: are we saying that all SO s are possibly affected? Anne Aikman-Scalese (IPC): @ Rudi - This is one of the discussions in the drafting team. There are some who think all SOs and ACs are affected and must take into account the HR- FOI. Others seems to say that, for example, this does not affect any GAC procedures at all but I don't know why. Niels Ten Oever: (no comments). "Consider how the interpretation of this....." (reading). Kavouss Arasteh: Can we "interpret" this Bylaw? do we have the right to do this? Anne Aikman-Scalese: good question. Its the obligation of the Board in terms of who is responsible for compliance with the HR Bylaw. Kavouss Arasteh: There have been changes since last time - uncertain how this affects the GAC and its advice. Paragraph has to be revised - there cannot be interpretation of the bylaw. Mark Carvell UK GAC rep: The GAC will have regard to human rights when formulating its advice but the Board could conceivably reject the advice on grounds that to do so would conflict with the commitment on human rights. The Board would have to come back to the GAC to explain this. Anne Aikman-Scalese (IPC): There was also discussion in the drafting team regarding the use of the word "commitment" in two places in this document. "Commitment" is a term of art in the ByLaws and that word should be changed to either "Core Value to respect" or "obligation to respect" Human Rights. An ICANN "commitment" is something else with a different meaning for the definition of the Board's fiduciary duties. Rudi Daniel WS2 HR: i also agree with Anne's comment... Niels Ten Oever: KA - noted. But there is value in completing the reading. Kavouss Arasteh: Option 1 delete first line +1 word of second line, option 2 change Bylaw location. Rest is fine. David Mcauley: Suggestion is "in order to operationalize etc." I would delete. SOACs have such different remits that they could have 3 different takes on this. Cheryl Langdon-Orr (CLO): I see your point David Niels Ten Oever: So recommendation was to have a CCWG-HR and DM noted that it might not make sense to have 1 for all the SOACs because they are different. Andreea Brambilla: +1 David, I was interested in some explanation for why both PDPs and a CCWG are proposed for implementation. If it's a trade-off, that should be elaborated here. Andreea Brambilla: At least that way we are laying out all options (i.e. 'fully considering') Anne Aikman-Scalese (IPC): @Mark - I agree with you as to not understanding why the language re GAC says "There is no change". There must be a change for every body in the community that makes policy recommendations. Anne Aikman-Scalese (IPC): Re: PDP versus CCWG, I think it would be best if Human Rights are considered and included in the ongoing PDPS. In particular, these processes should be integrated in a manner that does not hold up another round - in particular a possible priority round for Community Applications. (these views are my own and not those of the IPC.) Niels Ten Oever: The last part " the affect if any .." (reading) Mark Carvell: AC's provide "advice" they do not develop policy they simply advise those who advise policy. The first sentence has no point - the key is the second sentence which applies to all ACs. The GAC has a WG on HRs and we will consider HR when developing advice for the Board. David McAuley (RySG): good point @Mark and agree second sentence is key point Niels Ten Oever: So MK remove the first sentece? (correct) and applies to all AC's. Anne Aikman-Scalese: Agree with MK the GAC will consider HRs. Agree that it applies to all ACs because but GAC advice has special status. Kavouss Arasteh: Agree with MK on first sentence. Anne Aikman-Scalese (IPC): I think it's fine to delete first sentence but shouldn't we be saying that GAC will take into account the FOI- HR when rendering public policy advice to the Board - as is incumbent on the GNSO? Cheryl Langdon-Orr: the ALAC is different we influence SO's where the policy is being developed and as such more along the lines of what DM was proposing where SO's are individual. So no need for special HR rules for ALAC. David McAuley (RySG): I actually think the second sentence is more accurate than that @Anne, i.e. that the Bd will take FoI into account as it considers GAC advice. David McAuley (RySG): Thanks CLO, helpful. Anne Aikman-Scalese (IPC): @ David - yes but that is accurate as to ALL SOs and ACs and other advisors, not just the GAC. Niels Ten Oever: Can we keep working on the document so we can have a document to review in Copenhagen. Kavouss Arasteh: Agree delete first sentence of the last part. Also the first line of the previous part. Cheryl Langdon-Orr (CLO): agree with the deletion of 1st sentence Anne Aikman-Scalese (IPC): Also agree to delete first sentence in last part. Do not understand why we cannot state that the GAC will consider HR's in defining its advice. Also wrt to balancing of core values - we seem to be unwilling to talk about the balancing between the human rights - the rights of authors must be balanced with privacy and free expressions on a case by case basis. This balancing should be discussed in Copenhagen. David McAuley (RySG): Good points Anne but I think we are avoiding specific examples for a reason - balancing will be done in discrete circumstances. I personally think this doc is not for granular HR discussion Kavouss Arasteh: responding to AAS - cross referencing, given HR in in the Bylaws, is therefore covered by the fact that the GAC advice must be consistent with the ICANN Bylaws - if we mention the GAC vs the HR then we have to also add it to gNSO and ccNSO. Mark Carvell: Support KA point. Appreciate ASS raising this point and should be discussed in the GAC. Anne Aikman-Scalese (IPC): @ DAvid - We are avoiding the elephant in the room if we do not discuss balancing among Human Rights. This is true in part because the work of the CCWP has not to date included any literature on the rights of authors as far as I know. Though it was agreed to incorporate this in Dublin. In truth, there is no free expression without protecting the rights of authors and artists to the integrity of their work. Cheryl Langdon-Orr (CLO): cultural DNA in many cases yes Mark Niels Ten Oever: Adjourning the call. Decisions: · * General agreement to delete the first sentence of the last section. Action Items: · * Everyone should keep working on the document.

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Proposed agenda meeting February 14 - 19:00 UTC
by Niels ten Oever Feb. 14, 2017

Feb. 14, 2017

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. Discussion of work-in-progress considerations document by drafting team 3. AOB Please find also attached the current version of the work-in-progress considerations document, which at this moment is a rough sketch for discussion in the drafting group. It can also be found here: https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AIt… I'm greatly looking forward to talk to you all tomorrow. 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 # 19 | 7 February 2017
by MSSI Secretariat Feb. 7, 2017

Feb. 7, 2017

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #19 here; https://community.icann.org/x/26XDAw A copy of the notes may be found below. Thank you. With kind regards, Brenda Brewer, Projects & Operations Assistant Multistakeholder Strategy & Strategic Initiatives (MSSI) Internet Corporation for Assigned Names and Numbers (ICANN) Notes: (Including relevant portions of chat): 1. Administrivia - Roll call, absentees, SoIs, etc No audio only participants. No SOI updates. No addition to agenda 2. The way forward vis a vis Public Comment of FoI Drafting team has been considering the bullets from annex 12. Their conclusion is that there is still work to be done by the subgroup, and recommendation made to hold off the public comment on the FoI, till a single document is produced that would consider all the bullets of annex 12. Subgroup consensus to proceed per this recommendation. This update will be presented at the CCWG plenary tomorrow. 3. High level overview of work-in-progress considerations document by drafting team - Preamble Kavouss: I think we should have only 1 document, not 2 separate documents. Tatiana: drafting team agrees that there should be only 1 document. The document presented is only a working document to discuss how we plan to address all the bullet points. All additions coming out of this exercise will be integrated in the FoI document. - Discussed bullet #1 - "Consider wich specific HR conventions ... " Drafting team will include feedback received in document for futher review / discussion - Discussed bullet # 2 - "Policies and frameworks..." Discussed the necessity to distinguish between ICANN org and ICANN community Kavouss: I disagree to make a distinction between ICANN org and ICANN community This topic needs to be further discussed - bullet # 3 - "Consistent with ICANN's existing processes..." Greg walked through the suggestions prepared by drafting team - bullet #4 - Consider how the interpretation and implementation of this bylaw..." Greg walked through the suggestions prepared by drafting team - bullet #5 - Consider what effect, if any, this bylaw will have..." Greg walked through the suggestions prepared by drafting team Kavouss: we need to further discuss this document, suggests to not make distinctions between groups. 4. AOB The drafting team will continue to work on this document based on the inputs received today. Subgroup will continue reviewing this document in the next meeting of the subgroup. Next subgroup meeting: Tuesday 15 Feb @19:00 UTC

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Re: [Ws2-hr] Proposed agenda meeting February 7 - 19:00 UTC
by Aikman-Scalese, Anne Feb. 7, 2017

Feb. 7, 2017

Ladies and gentlemen, I regret that a meeting out of the office has run long, and I will be unlikely to be able to participate in today's call. Thank you. Anne Aikman-Scalese Of Counsel 520.629.4428 office AAikman(a)lrrc.com ____________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, February 07, 2017 2:58 AM To: ws2-hr(a)icann.org Subject: [Ws2-hr] Proposed agenda meeting February 7 - 19:00 UTC 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. The way forward vis a vis Public Comment of FoI 3. High level overview of work-in-progress considerations document by drafting team 4. AOB Please find also attached the current version of the work-in-progress considerations document, which at this moment is a rough sketch for discussion in the drafting group. It can also be found here: https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3Oi5NYwN4AIt… I'm greatly looking forward to talk to you all this evening. 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 ________________________________ 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.

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