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

Notes, recordings and transcript for WS2 Human Rights Subgroup Meeting # 24 | 27 March 2017
by MSSI Secretariat March 27, 2017

March 27, 2017

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #24 here; https://community.icann.org/x/3rnRAw 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) [cid:image001.png@01D2A71A.84FB3690] Notes (includes relevant text from chat): 15 participants at start of call 1. Administrivia - Roll call, absentees, SoIs, etc Niels ten Oever - Changes to SOI? (none). Any issues to agenda? (none) 2. Continued First Reading (of two) of the Considerations document Niels ten Oever - (continuing where we left off last week - https://docs.google.com/document/d/1rDYyuXacrSYDtlSK5JqNQe7XOX2LbM86AzfDay8… ) Niels ten Oever - (strating from The Policies and frameworks.....- reading text of proposal). Para 1 comments? (none). Para 2 comments? Anne Aikman-Scalese (IPC): As per Niels, to be added at the end of this paragraph: "Human Rights should not be selectively analyzed since they are universal, indivisible, interdependent, and interrelated." Kavouss Arasteh - re INAPPROPRIATE suggest use another word - DOES NOT SEEM TO BE APPROPRIATE HERE or NOT RELEVANT HERE. Tatiana Tropina: "not relevant in the context of this FoI" Tatiana Tropina: or doesn’t not fit for the purpose of this FoE Anne Aikman-Scalese (IPC): Agree with Tatiana's suggestion on this Tatiana Tropina: I can live with this, agree with Kavouss to replace Anne Aikman-Scalese - my suggestion above seems to go somewhere else? Niels ten Oever - correct 2 paras down. Greg Shatan - re INNAPROPRIATE would prefer to simply add HERE. Re AAS suggestion - better to say it here? cannot just apply suggestion to HRIA - so should probably be here and not later or here and later. John Laprise: Agree w/Greg Niels ten Oever: Text to which Greg and Anne are referring: Niels ten Oever: Human Rights should not be selectively analyzed since they are universal, indivisible, interdependent, and interrelated. could agree to put it either or in both. Jorge Cancio (GAC Switzerland): is "analyzed" the right word? Jorge Cancio (GAC Switzerland): or should we use "considered"? Jorge Cancio (GAC Switzerland): "should not be considered in isolation, since they are..." Tatiana Tropina - NOT APPROPRIATE - Niels ten Oever: The subgroup notes that the word “commitment” used in this sentence is not appropriate of interpreting the Human Rights Core Value. Tatiana Tropina: in the conext of interpreting HR CV Kavouss Arasteh - Do agree with GS word. Support JC proposal. Niels ten Oever: The subgroup notes that the word “commitment” used in this sentence is not quite appropriate for interpreting the Human Rights Core Value. Seems to be acceptable (no objections). Jorge Cancio (GAC Switzerland): full text for the non-cherry-picking: "Human Rights should not be considered in isolation since they are universal, indivisible, interdependent, and interrelated." Niels ten Oever - JC text could be added at the end. Anne Aikman-Scalese - fine with JC language. Also like TT languae before. Tatiana Tropina: I am comfortable with no cherry picking clause. I would avoid proportionality as it's up to courts and it is a very complex issue - we have to get to the weeds and will never come back. But am comfortable with cherry picking. Greg Shatan - re JC text - need to say EACH or individual - best to try using the language in Annex 6 which is consensus language. Andrew Mack: individual human rights should not be considered separately Andrew Mack: ? Tatiana Tropina: Individual human rights has double meaning in this context Anne Aikman-Scalese (IPC): Good point Tatiana Tatiana Tropina: Might be considered as human rights of an individual Andrew Mack: yes Tatiana Jorge Cancio (GAC Switzerland): "discrete" is so awful? Tatiana Tropina: "No specific human right shall be considered in isolation" Greg Shatan - that would work. Kavouss Arasteh - do not understand why we need specific. Disagree with this. Agree with PARTICULAR but not SPECIFIC. Niels ten Oever: Particular Human Rights should not be considered in isolation since they are universal, indivisible, interdependent, and interrelated. Andrew Mack: either seems ok to me Niels ten Oever - Next para "consistent with ICANN's existing processes and...." Kavouss Arasteh - re gNSO portion just "allow" seems wrong should be " should or shall or must allow". Tatiana Tropina: expected to allow Tatiana Tropina: me likes. Cheryl Langdon-Orr (CLO): it does already allow by the way Anne Aikman-Scalese - re CLO because the PDP says it must already. Markus Kummer - since the Bylaws say Allow lets keep it as is. Kavouss Arasteh - are we discussing the FOI or the PDP. If we use the PDP then let us quote and identify it. Anne Aikman-Scalese (IPC): We could say "The GNSO Policy Development Process" provides for Greg Shatan - Agree with AAS. Tatiana Tropina: I agree with Anne Tatiana Tropina: it should address Kavouss concern, too - no? Cheryl Langdon-Orr (CLO): yup Kavouss Arasteh - Agree with AAS suggestion. Neils ten Oever - next para "consider how the interpretation and implementation....". Anne Aikman-Scalese (IPC): One suggestion here to avoid the issue of "principles of proportionality" expressed in the drafting team is to do this:"HRIAs should avoid "cherry-picking" and should honor the principle that Human Rights are indivisible and interdependent." Kavouss Arasteh - cannot understand AAS proposal - why do we need this? Tatiana Tropina: I like Anne's compromise. Honoring the invisibility and interdependency is ol Anne Aikman-Scalese - could agree with KA - we could go back to the original language. Jorge Cancio (GAC Switzerland): could we refer back to the language we agreed just before? tatiana Tropina - like AAS compromise - uncertain about the word "principal". will put my suggestion from the chat. Niels ten Oever: HRIA should consider not consider Human Rights in isolation since they are universal, indivisible, interdependent, and interrelated. Niels ten Oever: HRIA should not consider Human Rights in isolation since they are universal, indivisible, interdependent, and interrelated. Jorge Cancio (GAC Switzerland): HRIA should be consistent with the principle that specific Human Rights should not be considered in isolation since they are universal, indivisible, interdependent, and interrelated. Tatiana Tropina: yes we can do that as well - Anne? Anne Aikman-Scalese (IPC): should not consider "particular" Human rights Niels ten Oever: HRIA should not consider particular Human Rights in isolation since they are universal, indivisible, interdependent, and interrelated. Niels ten Oever: HRIAs should not consider particular Human Rights in isolation since they are universal, indivisible, interdependent, and interrelated. Tatiana Tropina: yes am very happy too. I can't believe my ears and eyes Anne Aikam-Scalese - Drafting team note that there is a need to have a mechanism to consider how to address HR violations. Uncertain where it goes. Greg Shatan - where "policies and processes ICANN needs to implement..." Niels ten Oever - lets take this to the drafting team and review on our call next week. Jorge Cancio (GAC Switzerland): agree with Niels Greg Shatan: +1 Kavouss Arasteh - Re from GAC meeting - do not see all SOACs the same and not pick on GAc only. Niels ten Oever - thought it was fixed - if not lets discuss on list. KA please send to list. Ajourned.

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Proposed Agenda continued FIRST READING considerations document March 26 19:00 UTC
by Niels ten Oever March 26, 2017

March 26, 2017

Dear all, Please find attached and underneath the agenda for our session tomorrow March 26 at 19:00 UTC. The document we'll discuss is the document we've jointly edited during our session last week, no changes have been made since, you can find it attached (PDF and docx). There is still one minority minority position of Anne Aikman-Scalese in the document for discussion (in Burgundy). Even though one point is unresolved I hope we can still aim to have a continued first reading of the document, next to the discussion of the one point of course. If people have text proposals, it would be tremendously helpful if they could share them with me before the call on the list or in the Google Doc as Comment or Suggestion. 1. Administrivia Roll call, absentees, SoIs, etc 2. Continued First Reading (of two) of the Considerations document 3. AOB The document can also be found here: https://docs.google.com/document/d/1rDYyuXacrSYDtlSK5JqNQe7XOX2LbM86AzfDay8… Please let me know if you have any questions or suggestions. All the 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 # 23 | 21 March 2017
by MSSI Secretariat March 22, 2017

March 22, 2017

Hello all, Please see the notes, recordings, and transcript for the CCWG Accountability WS2 Human Rights Subgroup Meeting #23 here; https://community.icann.org/x/M6vRAw 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) [cid:image001.png@01D2A315.E70FD1A0] Notes (including relevant portions of the chat): 12 participants at start of call 1. Administrivia - Roll call, absentees, SoIs, etc Niels ten Oever - No apologies, no audio only, no update to SOIs. Short update on ICANN58 - we are under some time constraint. There was a meeting facilitated by the GAC WG on HR where Anita Ramastray was present offered UN support for the work for the sub-group after a cursory presentation of the Ruggie principles. Propose we ask AR and the UN wg on business and HR to give their feed back as part of the public consultation on our report (no objections) - will inform them of this. Any updates to agenda? (none). David McAuley: agreed to that approach 2. First reading (of two) of the Considerations document prepared by the drafting team Niels ten Oever - Ask the drafting team to walk us through the most recent version. Anne Aikman-Scalese - thank you for including my minority positions. description of meetings of the drafting team meetings in Copenhagen. David McAuley: why not parse them out by paragraph Tatiana Tropina: We changed the first para as well - in accordance with the comments from the previous call Niels ten Oever: Maybe we should start with reading out the first para (review of draft document - Consideration - new para 1) Greg Shatan - If and where we should put in something about NO CHERRY PICKING. It may make sense to put it in this para. Niels ten Oever - some text in Annex 6 of WS1 report seems to fit the bill. the last part of this could meet the requirements? "The CCWG-Accountability also disagreed with any attempt to single out any specific Human Right (such as “freedom of expression”) in the proposed draft Bylaw text on the basis that Human Rights cannot be selectively mentioned, emphasized, or applied since they are universal, indivisible, interdependent, and interrelated." Niels ten Oever: Human Rights cannot be selectively mentioned, emphasized, or applied since they are universal, indivisible, interdependent, and interrelated. Paul Twomey: Does the ICANN can choose approach leave it open to litigators saying you failed because you did not choose the instrument that I prefer? I don't have a solution for this I am afraid - should we ask the lawyers? Niels ten Oever - do not think this is an issue by have no issue asking the lawyers. David McAuley - tend to agree with PT. The text quoted by NTO have a problem with the word APPLIED. Also the obligation to respect is limited to those Internationally Recognized and per applicable law. matthew shears: agree with David on the above. One could of course just state that "Human Rights are universal, indivisible, interdependent, and interrelated." Kavouss Arasteh - Too many proposed modifications need to be included before we can consider this as a first reading. Need a new draft if we are doing this. kavouss arasteh: pls provide concrete changes Anne Aikman-Scalese (IPC): re Kavouss comment I believe it will be valuable to the group to reach a true full consensus. If not, we have to point out a lack of consensus and address the disagreed positions. kavouss arasteh: You started that on sunday ...consensus was reached?? Anne Aikman-Scalese (IPC): IN this regard, I have personal experience (and so does Avri) working to full consensus on GNSO SCI (when it existed.) Cheryl Langdon-Orr (CLO): yes Anne +++ kavouss arasteh: Greg, pls provide concrete proposal rather than describing the proposal Niels ten Oever: +1 but perhaps lets discuss this when we get to that part of the text? Anne Aikman-Scalese (IPC): @Kavouss - no I did not start this on Sunday. NOt at all. kavouss arasteh: Niels ,no. of intervention must be restricted not more than two Greg Shatan - A few thoughts vs PT comment - Applicable Law thing is very helpful here - if something goes beyond applicable law its going beyond the remit of the Bylaw. So not too worried about PT question. On cherry picking those instruments that fall within the Bylaw we cannot separate the elements in that instrument vs saying certain instruments apply or not. (reading second para of Considerations) Paul Twomey - edits proposed will be typed in chat. Paul Twomey: Change to "{However, with regards to the implementation of the Core Value, at least certain aspects of the UN Guiding Principles for Business and Human Rights, could be considered as a useful guide in the process of applying the Human Rights Core Value." Kavouss Arasteh - all proposals for change should be type in chat. Mathew Shears - As a member of the drafting team this discussion is useful. Proposed edits. Niels ten Oever: https://docs.google.com/document/d/1rDYyuXacrSYDtlSK5JqNQe7XOX2LbM86AzfDay8… Paul Twomey: I am concerned that the community does not draw the conclusion that we are signalling that the how guiding principles is potentially applicable - this I would think is a major mistake Anne Aikman-Scalese (IPC): Sorry I did not understand the proposed edit by Matthew. Paul Twomey: sorry I mean the whole guiding principles Cheryl Langdon-Orr (CLO): I for one am finding these brief explanations of both concerns with and rationale for the proposed text useful at this polishing stage, as well as the proposed edits to the text being made to chat or of course GDoc Paul Twomey - Worried that we would say that the Principles as a whole could be used. Would prefer we state that certain aspects of the principles. Cheryl Langdon-Orr (CLO): this is good refinement IMO David McAuley: I agree w/Paul avri doria: caveat ++ avri doria: why not. it is all the same, but sounds safer. Cheryl Langdon-Orr (CLO): correct @Paul "aspects" are good guidance avri doria: as it is something to be considered later in the light of circumstances at the time, indefiniate caveats really netierh add nor substract anything. avri doria: i am saying it doesn't matter at all. Anne Aikman-Scalese - comments from AD and SLO - importance to keep ASPECTS in the draft - and do not understand MS's proposal. Kavouss Arasteh - difficult to follow the proposals. Anne Aikman-Scalese (IPC): Thanks Avri - I think I misread your comment. matthew shears: I retract my proposed edit - apologies Niels ten Oever: "However with regard to the implementation of the Core Value at least certain aspects of the UN Guiding Principles for Business and Human Rights could be considered as a useful guide in the process of applying the Human Rights Core Value" Avri Doria - Like PT's proposal - good sentence. Cheryl Langdon-Orr - Re AAS point - I always like ASPECTS and I have been conssistent on this. Agree with AD and it is a good sentence. Think we are getting there. matthew shears: do we need the "at least"!?? Tatiana Tropina: now we don't Greg Shatan: We should take out the "at least" David McAuley: agree w Greg to take out 'at least' Niels ten Oever: If we say 'at least' then we're saying it can never be all Niels ten Oever: that would be in contention with the later sentence in which we say we don't analyze all Niels ten Oever: sorry, if we remove 'at least' David McAuley: I also agree that using adobe while live-drafting in GDoc is very hard to keep pace with. Greg Shatan: We should make sure to bring the language back in to the Chat as Niels has done. Paul Twomey: I could live with deleting at least But will leave to others Anne Aikman-Scalese (IPC): Agree with Cheryl and David Niels ten Oever: However with regard to the implementation of the Core Value at least certain aspects of the UN Guiding Principles for Business and Human Rights could be considered as a useful guide in the process of applying the Human Rights Core Value. Paul Twomey - GS, TT and MS are correct regarding AT LEAST. Greg Shatan - the AT LEAST causes waffling and could be considered and endorsement of the whole which would be beyond our consensus - Niels ten Oever: so it is a qualifying statement Niels ten Oever: That is a good point matthew shears: could does not qualify - it might it might not - which is appropriate Cheryl Langdon-Orr (CLO): that is a risk IMO @Tatiana as Paul notes it could be read to indicate a minimum requirement up to 100% ( shudder from me) Niels ten Oever - have removed AT LEAST since this seems to be the consensus. Niels ten Oever: However with regard to the implementation of the Core Value certain aspects of the UN Guiding Principles for Business and Human Rights could be considered as a useful guide in the process of applying the Human Rights Core Value. David McAuley: we need a medium Niels, thank you. Kavouss Arasteh - agree with removing AT LEAST. (last part of second paragraph of Consideration - as proposed by AAS). Anne Aikman-Scalese - comment made in the spirit of good clear governance. Request for Reconsideration and IRP will be avaialble for the community - this is good - but when considering policies there should be less severe mechanisms which would be less expensive but could provide resolution.So since the more formal mechanisms have been mentionned we should make efforts to encourage alternate mechanisms. Kavouss Arasteh - If this is a CONSIDERATION then we should not use MUST. Niels ten Oever 2: These bodies must also consider Human Rights grievance procedures to be implemented such as Request for Reconsideration and Independent Review Process as well as any less formal steps to be taken prior to the invoking of either of these more formal procedures. David McAuley: thanks Niels Anne Aikman-Scalese (IPC): Readily agree to replace "must" with "need" . Good suggestions David McAuley - support both AAS and KA points - this would make sense. Greg Shatan - Laudable goal - this is not the time, place or group to do this. As such this sentence should be removed. This could be a rabbit hole avri doria: remember to cross talk this to the ombudsman group if we go this way. Cheryl Langdon-Orr (CLO): yes essential if we do decide @Avri Tatiana Tropina: I am not comfortable with the words "must" and I agree with Greg. David McAuley: I would not object to removal matthew shears: I agree with Greg - I am uncomfortable for the same reasons David McAuley: also did not understand "more formal procedures" Erich Schweighofer: Agree with Greg. Cheryl Langdon-Orr (CLO): agree Niels ten Oever - seems there is support to remove this text. I will re-circulate a new draft this week. Adjourned.

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Proposed Agenda FIRST READING considerations document March 21 19:00 UTC
by Niels ten Oever March 21, 2017

March 21, 2017

Dear all, Please find attached and underneath the agenda for our session tomorrow March 21 at 19:00 UTC. The document we'll discuss is the Copenhagen Drafting Team Consensus Document, which clearly was not a full consensus, so I've added the minority position of Anne Aikman-Scalese to the document for discussion. Even though these two points are unresolved I hope we can still aim to have a first reading of the document, next to the discussion of the points of course. 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/1rDYyuXacrSYDtlSK5JqNQe7XOX2LbM86AzfDay8… Please let me know if you have any questions 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] Copenhagen Drafting Team - Further edits to be reviewed with the Subgroup on Tuesday
by Aikman-Scalese, Anne March 18, 2017

March 18, 2017

Dear Colleagues, So of course I am having my normal troubles with Google docs even though trying to enter in "Suggesting" mode. Per my previous e-mail, I added a suggested edit re less formal grievance procedures than RFR and IRP at the end of the first section. Less formal processes should be instituted so that matters could be resolved before reaching this stage. Then in relation to the Human Rights Impact Assessment section, I added a reference to the fact that HRIAs should "avoid cherry-picking" and be conducted with "due regard to principles of proportionality". Here I want to be very forthright again about the fact that creator's rights and the rights of indigenous peoples are also human rights. Too often we hear only about privacy and free expression and it is clear there is a balancing that must occur, especially in the ICANN context. Especially given the content of the CCWP Human Rights discussion on Wednesday and the SSAC letter, I think these considerations will be important in the processes to come within ICANN. Thank you for your consideration of these points in advance of the call on Tuesday. I hope you all are having safe travels. 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 -----Original Message----- From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Monday, March 13, 2017 1:20 PM To: ws2-hr Subject: [Ws2-hr] Copenhagen Drafting Team Consensus Dear all, The drafting team has been working hard during evening and early morning meetings and managed to come to a drafting team consensus of the considerations document, for your consideration. You can find the document attached and at the following link: https://docs.google.com/document/d/1rDYyuXacrSYDtlSK5JqNQe7XOX2LbM86AzfDay8… If you have questions, comments or suggestions, feel please bring them up on the list or in our upcoming meeting. But also feel free to approach the members of the drafting team during ICANN58 Copenhagen for more background. All the 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 ________________________________ 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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Copenhagen Drafting Team Consensus
by Niels ten Oever March 15, 2017

March 15, 2017

Dear all, The drafting team has been working hard during evening and early morning meetings and managed to come to a drafting team consensus of the considerations document, for your consideration. You can find the document attached and at the following link: https://docs.google.com/document/d/1rDYyuXacrSYDtlSK5JqNQe7XOX2LbM86AzfDay8… If you have questions, comments or suggestions, feel please bring them up on the list or in our upcoming meeting. But also feel free to approach the members of the drafting team during ICANN58 Copenhagen for more background. All the 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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Fwd: Input from SSAC to the WG on Human Rights
by Niels ten Oever March 15, 2017

March 15, 2017

Dear all, Please find attached the letter we received from SSAC. All the best, Niels -------- Forwarded Message -------- Subject: Input from SSAC to the WG on Human Rights Date: Mon, 13 Mar 2017 03:12:11 +0100 From: Patrik Fältström <paf(a)netnod.se> To: Niels ten Oever <niels(a)article19.org> CC: SSAC <ssac(a)icann.org>, Human Rights <cc-humanrights(a)icann.org> Niels, As chair of the Security and Stability Advisory Committee, one of the chartering organizations of the CCWG on Accountability, we would like to submit the attached comments as fruit for thought for the discussions. Best, Patrik Fältström Chair of the SSAC

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HR-FOI -On the need for Practical Reflection on ICANN Processes and Protocols
by Aikman-Scalese, Anne March 6, 2017

March 6, 2017

Dear all, I would like to bring forth another example of how ICANN works on a practical level in order to try to persuade the subgroup to reconsider my proposed language regarding the possible need to balance Human Rights, one in relation to the other, in addition to balancing Core Values. We have, as a very practical example, the work of the Expert Working Group on WhoIs/Registry Directory Services. This group consisted of many of the most experienced and finest minds within the ICANN community. This group struggled many months to arrive at compromises in relation to the recommendations surrounding WhoIs. Without specifically saying so, they ended up balancing many Human Rights considerations as well as public policy and safety considerations of concern to the GAC as well as human rights of authors (copyright and trademark holders) of concern to the private sector. Thus, a system was recommended relative to providing information on a need to know basis to the private sector and a higher level of access for purposes of enforcement against crime and fraud. (Again, to the extent the private sector is unable to enforce, government will be expected by consumers to do so.) So it is clear that in connection with gTLD policy, the Community has already been involved in balancing Human Rights in addition to balancing Core Values. This work continues in the Registry Directory Services PDP, the Rights Protection Mechanisms Review, and the Subsequent Procedures WG. (Niels had stated in Helsinki that he would be happy to add Rights of Authors to the agenda of the CCWP – HR work with these groups.) So I think it is quite worthwhile for this group to anticipate and discuss how the FOI-HR may affect the ongoing processes listed above and it is certainly appropriate for the Considerations document to make a short reference to the possible need to balance Human Rights in relation to each other in policy-making activities. This is not implementation. This is a recognition in the Considerations document of what is going on right now within ICANN as a practical matter. Perhaps there are those who are hoping that if we remain vague on this need to balance Human Rights in the policy-making process, each one can press his or her point with more effect when the time comes. Perhaps some will insist that certain Human Rights are absolute while others or not. This would be the dreaded "cherry-picking" we have agreed to avoid. Further, some may hope that if we make no comment as to the availability of RFR and IRP to challenge Board decisions, then the Board can readily be attacked for not being aggressive enough in respecting Human Rights. In this regard, I cannot agree with the "fly below the radar" approach to this very practical aspect of the possible effect of the FOI-HR and the various "Considerations". On the contrary, we need to consider bringing more clarity to the document in relation to the possibility of Requests for Reconsideration and Independent Review. (If I am wrong about this possibility of RFRs and IRPs in relation to Human Rights, I am sure Greg Shatan will correct me.) The current ByLaws appear to presume that once the FOI-HR is in place, then the RFR and IRP processes kick in and are applicable. This is why it is critical that our Considerations document not remain vague on the important points of the applicability (or not) of the Ruggie Principles and the need to balance Human Rights considerations one against the other in policy-making. Whether or not we reach consensus is also quite important. As a reminder regarding what the revised ByLaws actually say (underlining for emphasis is mine): Section 27.2. HUMAN RIGHTS (a) 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”) is (i) approved for submission to the Board by the CCWG-Accountability as a consensus recommendation in Work Stream 2, with the CCWG Chartering Organizations having the role described in the CCWG-Accountability Charter, and (ii) approved by the Board, in each case, using the same process and criteria as for Work Stream 1 Recommendations. (b) No person or entity shall be entitled to invoke the reconsideration process provided in Section 4.2, or the independent review process provided in Section 4.3, based solely on the inclusion of the Core Value set forth in Section 1.2(b)(viii) (i) until after the FOI-HR contemplated by Section 27.2(a) is in place or (ii) for actions of ICANN or the Board that occurred prior to the effectiveness of the FOI-HR. Thus, failing to address these practical issues in the Considerations document in relation to Annex 12 which asks that we consider the FOI-HR in relation to ICANN Processes and Protocols is a shirking of responsibility. We must resolve to attempt to assist ICANN to operate efficiently with respect to Human Rights. Bottle necks at the Board level due to conflicting policy advice are bad for the Community and bad for trust and confidence in the Internet. We need to describe Considerations in a way that reflects the practical operation of ICANN and to promote a system that does not put the Board in a constant state of reluctance to make a decision for fear of RFR and IRP actions. Looking forward to seeing as many of you who can attend in Helsinki as well as to the remote participation of those unable to attend. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D2927B.3A5494A0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> -----Original Message----- From: Aikman-Scalese, Anne Sent: Wednesday, March 01, 2017 9:49 AM To: 'Niels ten Oever'; Kavouss Arasteh Cc: <ws2-hr(a)icann.org> Subject: RE: [Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC Niels, "without prejudice" is fine language. The fact is the ICANN Board must have a 60% vote to reject GAC public policy advice. Why else are we locked up on IOC/RC issues? Let's recognize how ICANN really works so we can have a realistic discussion of how the FOI HR will affect ICANN processes and protocols. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 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 -----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, March 01, 2017 5:37 AM To: Aikman-Scalese, Anne; Kavouss Arasteh Cc: <ws2-hr(a)icann.org<mailto:ws2-hr@icann.org>> Subject: Re: [Ws2-hr] Proposed Agenda FIRST READING considerations document Feb 28 19:00 UTC Hi Anne, In Article 1, Principles 2 of GAC Operating Principles: ______________ Principle 2 The GAC shall provide advice and communicate issues and views to the ICANN Board. The GAC is not a decision making body. Such advice given by the GAC shall be without prejudice to the responsibilities of any public authority with regard to the bodies and activities of ICANN, including the Supporting Organisations and Councils. ______________ The GAC advises on policies, and does not create them. I think other interpretations might leads us into long complicated discussions. Best, Niels On 02/28/2017 09:03 PM, Aikman-Scalese, Anne wrote: > GAC absolutely does, from a practical standpoint, develop policies. It is mandated to advise the ICANN Board with respect to public policy and that results in policy recommendations. These public policy recommendations have special effect under the ByLaws when they are Consensus policies as to which the Board is advised. > > It is fiction that the GAC does not develop policy. Public policy is the role of the GAC. It directly affects gTLD policy. Otherwise, no GAC safeguards would exist as to certain strings, e.g. .bank, etc. etc. etc. Thank goodness for the GAC. Consumers would be in big trouble without the GAC and consumer trust and confidence is already challenged on the Internet. > Anne > > Anne E. Aikman-Scalese > Of Counsel > 520.629.4428 office > 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 > -----Original Message----- > From: ws2-hr-bounces(a)icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On > Behalf Of Niels ten Oever > Sent: Tuesday, February 28, 2017 11:49 AM > To: Kavouss Arasteh > Cc: <ws2-hr(a)icann.org<mailto:ws2-hr@icann.org>> > Subject: Re: [Ws2-hr] Proposed Agenda FIRST READING considerations > document Feb 28 19:00 UTC > > Dear Kavouss, > > There are no policies developed in the GAC, so this makes the GAC different from the GNSO, CCNSO, and ASO, right? > > Best, > > Niels > > On Tue, Feb 28, 2017 at 07:36:16PM +0100, Kavouss Arasteh wrote: >> Dear Niels, >> I understand that the question referring to GAC Advice then pls add >> the same text to the Policy development under GNSO and CCNSO by >> replacing GAC by these two entities. >> I have proposed that version earlier but you did not consider it. >> What I wish is to treat all entities providing Recommendations and >> Advice EQUALY. >> Some GNSO, IPC, ccNSO participants pushing to marginalize GAC again. >> Pls kindly understand the problem >> Regards >> Kavouss >> >> >> 2017-02-28 12:38 GMT+01:00 Niels ten Oever <lists(a)nielstenoever.net<mailto:lists@nielstenoever.net>>: >> >>> Dear Kavouss, >>> >>> On 02/28/2017 10:03 AM, Kavouss Arasteh wrote: >>>> Dear Niels, >>>> Thank you very much for the file. >>>> I still have serious difficulties to treat GNSO and ccNSO >>>> Recommendations from GAC Advice. Unless all three are not treated >>>> equally , I would continue to object to the texts proposed. >>> >>> The consideration is responding to a direct question about the GAC, >>> that is why only GAC is explicitly mentioned there. >>> >>> >>>> I also have problem with the term " HUMAN RIGHTS BYLAW as there is >>>> no Bylaw for human rights .Perhaps we should say Human Rights >>>> mentioned in Bylaw. >>> >>> OK, I propose that we consistently use Human Rights Core Value, so >>> that there will be no confusion about what is meant. >>> >>>> I therefore attaching my comments in a revised version of the doc., >>> >>> Thanks, >>> >>> Niels >>> >>>> Regards >>>> Kavouss >>>> >>>> >>>> 2017-02-28 8:26 GMT+01:00 <Jorge.Cancio(a)bakom.admin.ch >>>> <mailto:Jorge.Cancio@bakom.admin.ch>>: >>>> >>>> Dear Niels and all____ >>>> >>>> __ __ >>>> >>>> Further to the comment below, please find attached a version of the >>>> document with further suggestions and comments/questions (which I >>>> have also included in the Google Doc).____ >>>> >>>> __ __ >>>> >>>> It is unfortunate that I can no longer attend the meetings as they >>>> always are at the same time and at least in Europe fall in the >>>> evening, where other commitments and obligations of a different >>>> nature are due. Maybe we could reconsider the non-rotation of the >>>> meetings…____ >>>> >>>> __ __ >>>> >>>> Nonetheless, I hope that these comments may be taken on board during >>>> today’s call. ____ >>>> >>>> __ __ >>>> >>>> @staff: please mention my comments during the call, as if I was >>>> there J____ >>>> >>>> __ __ >>>> >>>> Kind regards____ >>>> >>>> __ __ >>>> >>>> Jorge ____ >>>> >>>> __ __ >>>> >>>> __ __ >>>> >>>> __ __ >>>> >>>> *Von:*Cancio Jorge BAKOM >>>> *Gesendet:* Dienstag, 28. Februar 2017 06:38 >>>> *An:* Niels ten Oever <lists(a)nielstenoever.net >>>> <mailto:lists@nielstenoever.net>>; ws2-hr(a)icann.org<mailto:ws2-hr@icann.org> >>>> <mailto:ws2-hr@icann.org> >>>> *Betreff:* AW: [Ws2-hr] Proposed Agenda FIRST READING considerations >>>> document Feb 28 19:00 UTC____ >>>> >>>> __ __ >>>> >>>> Dear Niels____ >>>> >>>> __ __ >>>> >>>> While I will not be able to attend the call this evening, I disagree >>>> with the wording of this sentence:____ >>>> >>>> __ __ >>>> >>>> "However, there was not sufficient support to recommend the >>>> application of the UN Guiding Principles for the /interpretation /of >>>> the Bylaw."____ >>>> >>>> __ __ >>>> >>>> The WG did not reach consensus or did not reach agreement - which is >>>> the way we worked. Saying that "there was not sufficient support" >>>> mischaracterizes the way we work(ed) and may imply that there was >>>> some sort of voting, which was not the case.____ >>>> >>>> __ __ >>>> >>>> Therefore I would propose the following text:____ >>>> >>>> __ __ >>>> >>>> "However, there was no agreement on whether to recommend the >>>> application of the UN Guiding Principles for the /interpretation /of >>>> the Bylaw."____ >>>> >>>> __ __ >>>> >>>> Hope you may take this on board.____ >>>> >>>> __ __ >>>> >>>> regards____ >>>> >>>> __ __ >>>> >>>> Jorge____ >>>> >>>> __ __ >>>> >>>> __ __ >>>> >>>> ------------------------------------------------------------ >>> ------------ >>>> >>>> >>>> *Von:* Niels ten Oever <lists(a)nielstenoever.net >>>> <mailto:lists@nielstenoever.net>> >>>> *Datum:* 28. Februar 2017 um 01:16:01 MEZ >>>> *An:* ws2-hr(a)icann.org<mailto:ws2-hr@icann.org> <mailto:ws2-hr@icann.org><ws2-hr(a)icann.org >>>> <mailto:ws2-hr@icann.org>> >>>> *Betreff:* [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/1KJfmglI5wBib7T5hgIMMysO7x6J3O >>> i5NYwN4AItZjkY/edit >>>> >>>> <https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3O >>> i5NYwN4AItZjkY/edit> >>>> >>>> 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<http://www.article19.org> <http://www.article19.org> >>>> >>>> PGP fingerprint 8D9F C567 BEE4 A431 56C4 >>>> 678B 08B5 A0F2 636D 68E9____ >>>> >>>> >>>> _______________________________________________ >>>> Ws2-hr mailing list >>>> Ws2-hr(a)icann.org<mailto:Ws2-hr@icann.org> <mailto:Ws2-hr@icann.org> >>>> https://mm.icann.org/mailman/listinfo/ws2-hr >>>> <https://mm.icann.org/mailman/listinfo/ws2-hr> >>>> >>>> >>> >>> -- >>> Niels ten Oever >>> Head of Digital >>> >>> Article 19 >>> www.article19.org<http://www.article19.org> >>> >>> PGP fingerprint 8D9F C567 BEE4 A431 56C4 >>> 678B 08B5 A0F2 636D 68E9 >>> > > -- > > Niels ten Oever > Head of Digital > > Article 19 > www.article19.org<http://www.article19.org> > > PGP fingerprint 2458 0B70 5C4A FD8A 9488 > 643A 0ED8 3F3A 468A C8B3 > > > ________________________________ > > 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. > -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://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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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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