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

WG: Draft Message to CCWG
by Jorge.Cancio＠bakom.admin.ch Aug. 18, 2017

Aug. 18, 2017

Fyi see below - just in case this message from our Brazilian colleague had not reached the list. Kind regards Jorge -----Ursprüngliche Nachricht----- Von: Thiago Braz Jardim Oliveira [mailto:thiago.jardim@itamaraty.gov.br] Gesendet: Donnerstag, 17. August 2017 14:46 An: 'lists(a)nielstenoever.net' <lists(a)nielstenoever.net>; 'ws2-hr(a)icann.org' <ws2-hr(a)icann.org> Cc: Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch>; Mark Carvell (mark.carvell(a)culture.gov.uk) <mark.carvell(a)culture.gov.uk>; Benedicto Fonseca Filho <benedicto.fonseca(a)itamaraty.gov.br> Betreff: RE: [Ws2-hr] Draft Message to CCWG Dear Niels, It has been drawn to our attention that the comments and suggestions made by Brazil on the Framework of Interpretation of Human Rights were not accepted. Brazil examined the "answers" the subgroup provided and feels they do not adequately addresses our concerns, nor do they adequately answer the points we raised. We regret that we have not been invited to take part in the discussions leading to this outcome and would like that a disclaimer be included in whatever document is circulated with these "answers", stating that (i) Brazil was not invited to participate in the discussions where the subgroup considered Brazil's comments and that (ii) Brazil does not endorse or support the "answers" provided by the subgroup. Thank you. Best regards, Thiago Jardim Thiago Braz Jardim Oliveira Secretary, Information Society Division Ministry of Foreign Affairs, Brazil +55 61 2030 6389 -----Ursprüngliche Nachricht----- Von: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Mittwoch, 16. August 2017 14:53 An: ws2-hr(a)icann.org Betreff: [Ws2-hr] Draft Message to CCWG Dear all, I hope this e-mail finds you all very well. As a follow up to yesterdays meeting Bernie and I have prepared a response to the CCWG that you can find underneath, as well as a more detailed overview attached. This is a first draft. We would very much like to hear you comments, suggestions and improvements. All the best, Niels The Cross Community Working Group on Enhancing ICANN’s Accountability Human Rights Subgroup would like to sincerely thanks those who have taken the time and effort to submit public comment to the Framework of Interpretation and Considerations document during the Public Comment Period [0]. The Subgroup has analyzed and discussed the comments at great length and came to the following conclusions: The mandate of the group does not include suggesting any changes to the ICANN Bylaws, this includes the Bylaw on Human Rights. As such any comments which would require changing the Bylaws cannot be accepted. This is the case for comments recommending changes in the hierarchy of Core Values as outlined in the bylaw or for comments pertaining the use of the term “applicable law” which is part of ICANN’s Human Rights bylaw. The Subgroup does recognize that the documents mentioned in the footnotes are not necessarily an exhaustive list of human rights document, and therefore the text has been changed from ‘including:’ to ‘including, but not limited to:’. Finally, no new references to any instrument in general or the UN Guiding Principles for Business and Human Rights in specific have been added. The group feels the current proposed wording is a balanced consensus between the different opinions held in the ICANN community, particularly concerning the remit of ICANN’s Mission. The HR sub-group has developed a document which lists a response to each of the major comments submitted to the public consultation and is including it in this email for reference by the CCWG-Accountability-WS2. This will be published on the public consultation web site as part of the standard process. As such the HR sub-group is submitting its final recommendations for an HR FoI to the CCWG-Accountability-WS2 for approval. Given the submissions made in the public comment process and the minimal changes that have been made to the document to address these the HR sub-group would not recommend this version be posted for public comment. [0] https://www.icann.org/public-comments/foi-hr-2017-05-05-en <https://www.icann.org/public-comments/foi-hr-2017-05-05-en> -- 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

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Re: [Ws2-hr] RES: Draft Message to CCWG
by Niels ten Oever Aug. 18, 2017

Aug. 18, 2017

Dear Thiago, Would it still be possible for you to participate in the upcoming call on Tuesday at 19:00 UTC ? That could pose an opportunity to discuss the comments and the outcome of the groups discussion. Best, Niels On 08/18/2017 01:59 PM, Thiago Braz Jardim Oliveira wrote: > Dear Niels, > > Thank you very much for your message. We acknowledge that there was a general invitation addressed to all GAC members (particularly those who provided comments) to further participate in the activities of the subgroup, and we regret not being able to attend to those. But the truth remains that we did not receive prior notice of the specific meeting(s) where the subgroup was going to consider and did consider Brazil's comments, nor did the subgroup seek Brazil's participation to further comment on or clarify our views after and in response to the meetings where Brazil's comments were considered. > > We understand that this was a matter for the subgroup to decide, and judging from the transcript of meeting #26 (18 July 2017), despite your own call to the effect that a representative of Brazil be on a call to further comment on or clarify our concerns, your suggestion was not taken up by the subgroup. Here's the quotation of your own suggestion, which the subgroup did not follow: "We could also consider inviting a representative of the government of Brazil maybe to explain their position in a bit more detail, or reach out to them in a following call." > > Therefore, we acknowledge that we have not participated in the discussions leading up to the "answers" to Brazil's comments, but also that we did not receive prior nor subsequent notice of the meetings where Brazil's comments were going to be discussed and were discussed. It is in view of the above that we would like to see a disclaimer included in any document referencing Brazil stating that we were not called upon to participate in the discussions that specifically dealt with Brazil's public comments, alongside with the statement that the "answers" to our comments are neither supported nor endorsed by Brazil. > > Thank you. > > Best regards, > > Thiago > > > Thiago Braz Jardim Oliveira > Secretary, Information Society Division > Ministry of Foreign Affairs, Brazil > +55 61 2030 6389 > > > -----Mensagem original----- > De: Niels ten Oever [mailto:lists@nielstenoever.net] > Enviada em: sexta-feira, 18 de agosto de 2017 06:02 > Para: Thiago Braz Jardim Oliveira; 'ws2-hr(a)icann.org' > Cc: Jorge.Cancio(a)bakom.admin.ch; Mark Carvell (mark.carvell(a)culture.gov.uk) Benedicto Fonseca Filho > Assunto: Re: [Ws2-hr] Draft Message to CCWG > > Dear Thiago, > > Thank you very much for your message. If I recall correctly, during the session of the GAC Working Group on Human Rights and International Law I explicitly invited commenters during the Public Comment Period and GAC members in general to participate in the discussions in the CCWG Human Rights Subgroup. > > Your comments have been discussed in great detail, as can be observed in the transcripts of the subgroup. If you think they have been insufficiently discussed - I would like to invite you again to partake in the discussion on this list and in our meetings on Tuesdays at 19:00 UTC at https://participate.icann.org/mssi-projects. > > All the best, > > Niels > > > > > On 08/17/2017 02:46 PM, Thiago Braz Jardim Oliveira wrote: >> Dear Niels, >> >> It has been drawn to our attention that the comments and suggestions made by Brazil on the Framework of Interpretation of Human Rights were not accepted. Brazil examined the "answers" the subgroup provided and feels they do not adequately addresses our concerns, nor do they adequately answer the points we raised. We regret that we have not been invited to take part in the discussions leading to this outcome and would like that a disclaimer be included in whatever document is circulated with these "answers", stating that (i) Brazil was not invited to participate in the discussions where the subgroup considered Brazil's comments and that (ii) Brazil does not endorse or support the "answers" provided by the subgroup. Thank you. >> >> Best regards, >> >> Thiago Jardim >> >> >> Thiago Braz Jardim Oliveira >> Secretary, Information Society Division Ministry of Foreign Affairs, >> Brazil >> +55 61 2030 6389 >> >> >> >> -----Ursprüngliche Nachricht----- >> Von: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] Im >> Auftrag von Niels ten Oever >> Gesendet: Mittwoch, 16. August 2017 14:53 >> An: ws2-hr(a)icann.org >> Betreff: [Ws2-hr] Draft Message to CCWG >> >> >> >> Dear all, >> >> >> >> I hope this e-mail finds you all very well. As a follow up to yesterdays meeting Bernie and I have prepared a response to the CCWG that you can find underneath, as well as a more detailed overview attached. >> >> >> >> This is a first draft. We would very much like to hear you comments, suggestions and improvements. >> >> >> >> All the best, >> >> >> >> Niels >> >> >> >> The Cross Community Working Group on Enhancing ICANN’s Accountability Human Rights Subgroup would like to sincerely thanks those who have taken the time and effort to submit public comment to the Framework of Interpretation and Considerations document during the Public Comment Period [0]. >> >> >> >> The Subgroup has analyzed and discussed the comments at great length and came to the following conclusions: >> >> >> >> The mandate of the group does not include suggesting any changes to the ICANN Bylaws, this includes the Bylaw on Human Rights. As such any comments which would require changing the Bylaws cannot be accepted. >> >> This is the case for comments recommending changes in the hierarchy of Core Values as outlined in the bylaw or for comments pertaining the use of the term “applicable law” which is part of ICANN’s Human Rights bylaw. >> >> >> >> The Subgroup does recognize that the documents mentioned in the footnotes are not necessarily an exhaustive list of human rights document, and therefore the text has been changed from ‘including:’ to ‘including, but not limited to:’. >> >> >> >> Finally, no new references to any instrument in general or the UN Guiding Principles for Business and Human Rights in specific have been added. The group feels the current proposed wording is a balanced consensus between the different opinions held in the ICANN community, particularly concerning the remit of ICANN’s Mission. >> >> >> >> The HR sub-group has developed a document which lists a response to each of the major comments submitted to the public consultation and is including it in this email for reference by the CCWG-Accountability-WS2. >> >> This will be published on the public consultation web site as part of the standard process. >> >> >> >> As such the HR sub-group is submitting its final recommendations for an HR FoI to the CCWG-Accountability-WS2 for approval. Given the submissions made in the public comment process and the minimal changes that have been made to the document to address these the HR sub-group would not recommend this version be posted for public comment. >> >> >> >> [0] https://www.icann.org/public-comments/foi-hr-2017-05-05-en >> <https://www.icann.org/public-comments/foi-hr-2017-05-05-en> >> >> >> >> >> >> >> >> -- >> >> 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 > > PGP fingerprint 8D9F C567 BEE4 A431 56C4 > 678B 08B5 A0F2 636D 68E9 > -- 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] Draft Message to CCWG
by Niels ten Oever Aug. 18, 2017

Aug. 18, 2017

Dear Thiago, Thank you very much for your message. If I recall correctly, during the session of the GAC Working Group on Human Rights and International Law I explicitly invited commenters during the Public Comment Period and GAC members in general to participate in the discussions in the CCWG Human Rights Subgroup. Your comments have been discussed in great detail, as can be observed in the transcripts of the subgroup. If you think they have been insufficiently discussed - I would like to invite you again to partake in the discussion on this list and in our meetings on Tuesdays at 19:00 UTC at https://participate.icann.org/mssi-projects. All the best, Niels On 08/17/2017 02:46 PM, Thiago Braz Jardim Oliveira wrote: > Dear Niels, > > It has been drawn to our attention that the comments and suggestions made by Brazil on the Framework of Interpretation of Human Rights were not accepted. Brazil examined the "answers" the subgroup provided and feels they do not adequately addresses our concerns, nor do they adequately answer the points we raised. We regret that we have not been invited to take part in the discussions leading to this outcome and would like that a disclaimer be included in whatever document is circulated with these "answers", stating that (i) Brazil was not invited to participate in the discussions where the subgroup considered Brazil's comments and that (ii) Brazil does not endorse or support the "answers" provided by the subgroup. Thank you. > > Best regards, > > Thiago Jardim > > > Thiago Braz Jardim Oliveira > Secretary, Information Society Division > Ministry of Foreign Affairs, Brazil > +55 61 2030 6389 > > > > -----Ursprüngliche Nachricht----- > Von: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever > Gesendet: Mittwoch, 16. August 2017 14:53 > An: ws2-hr(a)icann.org > Betreff: [Ws2-hr] Draft Message to CCWG > > > > Dear all, > > > > I hope this e-mail finds you all very well. As a follow up to yesterdays meeting Bernie and I have prepared a response to the CCWG that you can find underneath, as well as a more detailed overview attached. > > > > This is a first draft. We would very much like to hear you comments, suggestions and improvements. > > > > All the best, > > > > Niels > > > > The Cross Community Working Group on Enhancing ICANN’s Accountability Human Rights Subgroup would like to sincerely thanks those who have taken the time and effort to submit public comment to the Framework of Interpretation and Considerations document during the Public Comment Period [0]. > > > > The Subgroup has analyzed and discussed the comments at great length and came to the following conclusions: > > > > The mandate of the group does not include suggesting any changes to the ICANN Bylaws, this includes the Bylaw on Human Rights. As such any comments which would require changing the Bylaws cannot be accepted. > > This is the case for comments recommending changes in the hierarchy of Core Values as outlined in the bylaw or for comments pertaining the use of the term “applicable law” which is part of ICANN’s Human Rights bylaw. > > > > The Subgroup does recognize that the documents mentioned in the footnotes are not necessarily an exhaustive list of human rights document, and therefore the text has been changed from ‘including:’ to ‘including, but not limited to:’. > > > > Finally, no new references to any instrument in general or the UN Guiding Principles for Business and Human Rights in specific have been added. The group feels the current proposed wording is a balanced consensus between the different opinions held in the ICANN community, particularly concerning the remit of ICANN’s Mission. > > > > The HR sub-group has developed a document which lists a response to each of the major comments submitted to the public consultation and is including it in this email for reference by the CCWG-Accountability-WS2. > > This will be published on the public consultation web site as part of the standard process. > > > > As such the HR sub-group is submitting its final recommendations for an HR FoI to the CCWG-Accountability-WS2 for approval. Given the submissions made in the public comment process and the minimal changes that have been made to the document to address these the HR sub-group would not recommend this version be posted for public comment. > > > > [0] https://www.icann.org/public-comments/foi-hr-2017-05-05-en <https://www.icann.org/public-comments/foi-hr-2017-05-05-en> > > > > > > > > -- > > 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 PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Raw caption notes, recordings and transcript for Human Rights Subgroup Meeting #30 | 15 August 2017
by MSSI Secretariat Aug. 18, 2017

Aug. 18, 2017

Hello all, The raw caption notes, recordings and transcripts for CCWG Accountability WS2 Human Rights Subgroup Meeting #30 – 15 August 2017 will be available here: https://community.icann.org/x/KQIhB A copy of the action items and raw caption 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@01D315DF.2CB3D670] Action Items: * NTO and Staff will draft a transmission note to the CCWG-Accountability-WS2 for submitting the final report for a first reading including the tracking of decisions vs comments made in the public consultation. Raw Caption Notes Disclaimer: This rough edit transcript, which may contain missing, misspelled or paraphrased words, is only provided for your immediate review and is not certified as verbatim and is not to be cited in any way. * WORD DOC<https://community.icann.org/download/attachments/69272105/HUMAN%20RIGHTS%20…> * PDF<https://community.icann.org/download/attachments/69272105/HUMAN%20RIGHTS%20…> Decisions: * The modifications proposed by the drafting team were not supported and as such are rejected. The original text used in the public consultation will be used. Requests: * (none)

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Proposed Agenda August 15 19:00 UTC
by Niels ten Oever Aug. 15, 2017

Aug. 15, 2017

Dear all, I hope this email finds you all well. I am looking forward to discuss with you tomorrow the statement prepared by the draftig team. Unfortunately I haven't received the statement from them yet, but I am sure they are working hard on it. Please find all proposed items for the agenda below and attached: 1. Administrivia Roll call, absentees, SoIs, etc 2. Review proposed change by drafting team 3. Discussion approach to statement to CCWG 4. AOB As always I'm greatly looking forward to the call, you questions and 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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Re: [Ws2-hr] Suggested revision from drafting team
by Jorge.Cancio＠bakom.admin.ch Aug. 15, 2017

Aug. 15, 2017

Dear Anne, dear all, None of the comments filed talked about imposing UNGP to third parties - that is just a straw dog... The comments are quite more sophisticated than that. May I request clarification where the UNGP are referred to in the new suggested text? Perhaps I'm missing that... regards Jorge ________________________________ Von: Aikman-Scalese, Anne <AAikman(a)lrrc.com> Datum: 15. August 2017 um 19:53:58 MESZ An: 'Kavouss Arasteh' <kavouss.arasteh(a)gmail.com>, Cancio Jorge BAKOM <Jorge.Cancio(a)bakom.admin.ch> Cc: <ws2-hr(a)icann.org> Betreff: RE: [Ws2-hr] Suggested revision from drafting team Agree with this text. The main point I am interested in here is that if gTLD policy is impacted, then Human Rights assessments and policy must be developed in accordance with the Multi—Stakeholder Model. ICANN is not in fact a business. Businesses work top-down. Registry operators run businesses and registrars run businesses. These business entities can distinguish themselves in the marketplace by adopting the United Nations Guiding Principles for businesses. Certainly no one could object to ICANN electing to assess its internal operations using Ruggie – and that I think is the item that is being clarified in response to the comments filed by the governments. ICANN the organization is free to use UNGP, but when it comes to gTLD policy, that has to be developed “bottom-up”. While I may personally be in favor of certain Ruggie Principles applying to ICANN’s conduct within the organization, and especially Principle 18 as previously noted, I would not be able to support an approach which seeks to impose Ruggie Principles by causing ICANN to require registries and registrars to comply with them. This approach is definitely not consistent with the Multi-Stakeholder Model. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D315B4.A5EB8A90] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org]On Behalf Of Kavouss Arasteh Sent: Tuesday, August 15, 2017 10:49 AM To: <Jorge.Cancio(a)bakom.admin.ch> Cc: <ws2-hr(a)icann.org> Subject: Re: [Ws2-hr] Suggested revision from drafting team David, My condolence as your text is unacceptable to me and in no way ,even considered the comments made by three GAC members . The text is totally refused and categorically rejected as not only does not address those comment but it totally biased. Regards Kavouss On Tue, Aug 15, 2017 at 7:25 PM, <Jorge.Cancio(a)bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> wrote: Dear all, may I kindly request clarification this addition tries to address the comments made by three Governments during the public comment period? - I thought that the intention of this exercise was to find some compromise text bridging the gap to the positions expressed in the mentioned governmental inputs. Could you please help? Regards Jorge ________________________________ Von: McAuley, David via Ws2-hr <ws2-hr(a)icann.org<mailto:ws2-hr@icann.org>> Datum: 15. August 2017 um 18:09:50 MESZ An: ws2-hr(a)icann.org<mailto:ws2-hr@icann.org> <ws2-hr(a)icann.org<mailto:ws2-hr@icann.org>> Betreff: [Ws2-hr] Suggested revision from drafting team Hi Niels, The drafting team (Anne, Tatiana, Greg, Matthew, and I) suggests this text below. However, note that Anne has not yet given final approval of this text and thus may differ. Given the desire to get text out for consideration and the earliness of the hour in Anne’s time-zone we felt we should send the text now, subject to that one notation. SUGGESTED TEXT: "3.1 When examining its internal operations, ICANN the organization could, if it so chooses, consider using a mechanism to assess its impact on Human Rights. Whether and, if so, what mechanism to choose is solely up to ICANN the organization to decide. No such assessment should directly or indirectly impact gTLD policy formation or execution without being fully consistent with existing processes and protocols. The results of the organization's analysis should be reflected in its annual reporting" Best regards, David David McAuley Sr International Policy & Business Development Manager, Verisign Inc. 703-948-4154<tel:703-948-4154> _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

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Suggested revision from drafting team
by McAuley, David Aug. 15, 2017

Aug. 15, 2017

Hi Niels, The drafting team (Anne, Tatiana, Greg, Matthew, and I) suggests this text below. However, note that Anne has not yet given final approval of this text and thus may differ. Given the desire to get text out for consideration and the earliness of the hour in Anne's time-zone we felt we should send the text now, subject to that one notation. SUGGESTED TEXT: "3.1 When examining its internal operations, ICANN the organization could, if it so chooses, consider using a mechanism to assess its impact on Human Rights. Whether and, if so, what mechanism to choose is solely up to ICANN the organization to decide. No such assessment should directly or indirectly impact gTLD policy formation or execution without being fully consistent with existing processes and protocols. The results of the organization's analysis should be reflected in its annual reporting" Best regards, David David McAuley Sr International Policy & Business Development Manager, Verisign Inc. 703-948-4154

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Re: [Ws2-hr] Redline and also excerpt from Considerations re ICANN.org reviewing framework with SOs and ACs
by Rudolph Daniel Aug. 9, 2017

Aug. 9, 2017

I think I lean more heavily towards Anne's " To the extent..........protocols." Seems to me to her construct is more direct to the point others are also making rd On Aug 9, 2017 4:29 PM, "Seun Ojedeji" <seun.ojedeji(a)gmail.com> wrote: Sent from my mobile Kindly excuse brevity and typos On Aug 9, 2017 8:45 PM, "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> wrote: David, It is exactly because of the arguments you make below - and specifically with respect to UNGP Principle 18 - that I think any reference to the UNGPs as an applicable "mechanism" has to make clear that this does not reach Contracted Parties relationships unless a framework is proposed by ICANN the organization to the SOs and ACs and a Policy Development Process ensues. SO: +1 So if we are agreeing ICANN org can take these steps using a Ruggie mechanism and that it is up to ICANN org to determine which tools are appropriate, then we had better recognize this is expressing acquiescence to the idea that the Contracted Parties relationships can get a Ruggie assessment. SO: +1 and FWIW perhaps it's good to also read the "contacted parties" above beyond just the names but also the other communities that ICANN serves (numbers and protocol) Alternatively, we limit the comment to “internal operations”. SO: Makes sense, if for instance it's applied in consideration of diversity or for instance can be considered applicable in ombudsman dealings with community member(s) Or we say, “To the extent that the foregoing assessment may impact gTLD policy, ICANN the organisation will review such mechanisms in accordance with the existing processes and protocols”. SO: The above might work as well even though my preference is for the former. Regards I use the “existing processes and protocols” language because that is the section of the Considerations document we are working on. Anne *Anne E. Aikman-Scalese* Of Counsel 520.629.4428 <(520)%20629-4428> office 520.879.4725 <(520)%20879-4725> 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 Bastiaan Goslings Sent: Wednesday, August 09, 2017 6:25 AM To: McAuley, David Cc: ws2-hr(a)icann.org Subject: Re: [Ws2-hr] Redline and also excerpt from Considerations re ICANN.org reviewing framework with SOs and ACs Thanks, David - well stated. And I agree with Tijani as well. The point I made earlier with regard to the extremely careful phrasing and therefore essentially meaningless use of the UNGPs (3.1), can also be read as a suggestion to leave out such a referral full stop. Saying I was fine (‘agree’) with ‘suggesting in the FoI that ICANN _the organisation_ could use the UNGPs when ‘assessing its impact on Human Rights’’, was an attempt to be pragmatic and in line with what seemed to be the consensus during the call on August the 1st. And as far as I can see, having the option to consider to use a framework like the UNGPs to make an ‘assessment’ does not ‘create any obligation on ICANN outside its Mission, or beyond obligations found in applicable law’. > On 9 Aug 2017, at 14:59, McAuley, David via Ws2-hr <ws2-hr(a)icann.org> wrote: > > I too agree with Tijani’s well-stated contribution. > > In my opinion, (1) the UNGPs/Ruggie Principles are an excellent resource for businesses to use to take account of the human rights impacts of their products and services, and (2) ICANN is not an ordinary business. > > Principal 18 of the UNGPs describes an extraordinarily broad assessment for an organization coordinating the DNS. It says that businesses should identify and assess any actual orpotential adverse human rights impacts with which they may be involved – even if only as a result of their business relationships rather than as a result of their own actions (my emphasis). > > “Potential” is obviously capable of a vast reading. “Involved” could mean assessing the impact of content among other things outside ICANN’s remit, no? And Principle 13 defines “business relationships” to include “entities in its value chain” and entities “directly linked to its business operations, products or services” – so the UNGPs would require assessment down to the registrant level it seems. > > This strikes me as being far beyond the bylaw language saying, “This Core Value does not create, and shall not be interpreted to create, any obligation on ICANN outside its Mission, or beyond obligations found in applicable law.” > > If reference is made to the UNGPs in the considerations document in mandatory rather than discretionary terms then the UNGPs will be included in the considerations document and IRP panels will turn to them in cases where more explanatory context might be needed – a sort of “legislative history” to the ICANN bylaw. In my opinion that would be contrary to the bylaw itself. > > As part of the newly constituted drafting team, I will separately send suggested text as discussed yesterday that will be in line with these thoughts expressed here. > > Best regards, > David > > David McAuley > Sr International Policy & Business Development Manager Verisign Inc. > 703-948-4154 <(703)%20948-4154> > > From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org <ws2-hr-bounces(a)icann.org>] On > Behalf Of Schaefer, Brett > Sent: Wednesday, August 09, 2017 8:14 AM > To: Tijani BEN JEMAA <tijani.benjemaa(a)topnet.tn> > Cc: ws2-hr(a)icann.org > Subject: [EXTERNAL] Re: [Ws2-hr] Redline and also excerpt from > Considerations re ICANN.org reviewing framework with SOs and ACs > > I agree with Tijani. > > Brett Schaefer > Jay Kingham Senior Research Fellow in International Regulatory Affairs > Margaret Thatcher Center for Freedom Davis Institute for National > Security and Foreign Policy The Heritage Foundation > 214 Massachusetts Avenue, NE > Washington, DC 20002 > 202-608-6097 <(202)%20608-6097> > heritage.org > __________ > > On Aug 9, 2017, at 7:53 AM, Tijani BEN JEMAA <tijani.benjemaa(a)topnet.tn> wrote: > > Dear Anne and all, > > I understand that we try to integrate the comments received in our text, but there are 2 main things that I believe important to take into considération: > • The Ruggie Principles were discussed in length from the very beginning, and the decision inside the sub-group was not to use them for the main reason that they are for business entreprises and ICANN is not a business entreprise. Yes, I know Anne that we are speaking about the consideration document and not the FoI itself. But can you please tell me what will be the use of those « considerations »? They will accompany the FoI we are proposing and thus will be taken into consideration. The « UNGPs » are exactly the « Ruggie Principles ». Bringing them back on the table is not appropriate in my opinion. > • I agree with Tatiana that it is not in our remit to tell ICANN the org whether it should offer remediation, which is related to implementation, not interpretation. > > ---------------------------------------------------------------------- > ------- > Tijani BEN JEMAA > Executive Director > Mediterranean Federation of Internet Associations (FMAI) > Phone: +216 98 330 114 <+216%2098%20330%20114> > +216 52 385 114 <+216%2052%20385%20114> > ---------------------------------------------------------------------- > ------- > > > Le 8 août 2017 à 23:57, Aikman-Scalese, Anne <AAikman(a)lrrc.com> a écrit : > > Hi Brett and Steve, > First I want to note that the change being discussed relates to the “Considerations” document and not to the FOI itself. > > I was quite vocal on today’s call about not imposing any particular tool on the PDP process and about the idea that if ICANN org wants to propose a Human Rights “framework”, the Board would need to present that idea to the SOs and ACs for PDP work. (Our Considerations doc already says this.) So several of us expressed the view that the use of the word “Framework” in connection with what ICANN Org can do regarding its own internal operations is not appropriate. > > As later clarified by Niels, he was trying to accommodate public > comment by the governments of the UK, Brazil, and Switzerland by > talking about the availability of certain of the tools suggested in > Ruggie to gauge IMPACT on the organization. This is a much narrower > change which deals with assessment tools rather than frameworks for > addressing Human Rights concerns. (I think there was no objection to > deleting “for further remediation” from the proposed language.) > > This is why I suggested the compromise of referring to “tools” (instead of “frameworks”) in the Considerations document and gave the specific example of Principle 18 of Ruggie as a possible assessment tool available to ICANN the organization. > > Principle 18 provides as shown below. Principle 18(b) appears to me to be quite consistent with the Multi-Stakeholder Model and actually preferable to the use of an HRIA tool alone since the folks who conduct HRIAs are not used to the ICANN Model and are not used to balancing Core Values as ICANN is required to do by the ByLaw. Nor are they at all used to according each Human Right equal weight so I think Principle 18)b) is particularly useful in this exercise. > > Concerning the use of the word “business relationships” in Principle 18, I think it would have to be clarified that we are not talking about Contracted Party business relationships. Any assessment of or changes to those contracts would have to be the subject of Consensus Policy developed via PDP. > > 18. > In order to gauge human rights risks, business enterprises should > identify and assess any actual or potential adverse human rights > impacts with which they may be involved either through their own > activities or as a result of their business relationships. This process should: > (a) > Draw on internal and/or independent external human rights expertise; > (b) > Involve meaningful consultation with potentially affected groups and > other relevant stakeholders, as appropriate to the size of the > business enterprise and the nature and context of the operation. > > > > Anne E. Aikman-Scalese > Of Counsel > 520.629.4428 <(520)%20629-4428> office > 520.879.4725 <(520)%20879-4725> fax > AAikman(a)lrrc.com > _____________________________ > <image002.png> > Lewis Roca Rothgerber Christie LLP > One South Church Avenue, Suite 700 > Tucson, Arizona 85701-1611 > lrrc.com > > From: Steve DelBianco [mailto:sdelbianco@netchoice.org <sdelbianco(a)netchoice.org>] > Sent: Tuesday, August 08, 2017 3:35 PM > To: Schaefer, Brett; Aikman-Scalese, Anne > Cc: ws2-hr(a)icann.org > Subject: Re: [Ws2-hr] Redline and also excerpt from Considerations re > ICANN.org reviewing framework with SOs and ACs > > Agree with Brett on this: we will not have consensus to impose any particular HR instrument on the policy development process in gNSO and ccNSO. > > > From: <ws2-hr-bounces(a)icann.org> on behalf of "Schaefer, Brett" > <Brett.Schaefer(a)heritage.org> > Date: Tuesday, August 8, 2017 at 4:50 PM > To: "Aikman-Scalese, Anne" <AAikman(a)lrrc.com> > Cc: "ws2-hr(a)icann.org" <ws2-hr(a)icann.org> > Subject: Re: [Ws2-hr] Redline and also excerpt from Considerations re > ICANN.org reviewing framework with SOs and ACs > > Granted, I have not been active lately, but the last I knew specific references to any HR instrument or the UNGPs had been deemed outside of consensus. How does this keep coming back into the text? > > BrettSchaefer > Jay Kingham Senior Research Fellow in International Regulatory Affairs > Margaret Thatcher Center for Freedom Davis Institute for National > Security and Foreign Policy The Heritage Foundation > 214 Massachusetts Avenue, NE > Washington, DC 20002 > 202-608-6097 <(202)%20608-6097> > heritage.org > __________ > > On Aug 8, 2017, at 4:06 PM, Aikman-Scalese, Anne <AAikman(a)lrrc.com> wrote: > > Personally, I agree with Niels that if ICANN.org decides by a vote of the Board of Directors to use Ruggie as an assessment tool and then presents those results to the SOs and ACs for further consideration in the policy development processes, that is fine. Don’t know whether the cost of such an assessment would create a budgetary issue. I also think we should be careful not to create possible liability or evidence that would be used to support action against the ICANN Board/organization. > > Anne E. Aikman-Scalese > Of Counsel > 520.629.4428 <(520)%20629-4428> office > 520.879.4725 <(520)%20879-4725> fax > AAikman(a)lrrc.com > _____________________________ > <image001.png> > Lewis Roca Rothgerber Christie LLP > One South Church Avenue, Suite 700 > Tucson, Arizona 85701-1611 > lrrc.com > > From: Aikman-Scalese, Anne > Sent: Tuesday, August 08, 2017 1:01 PM > To: ws2-hr(a)icann.org > Subject: Redline and also excerpt from Considerations re ICANN.org > reviewing framework with SOs and ACs > > In the Considerations document, we also have language which tries to protect the role of SOs and ACs as follows: > > “When developing corporate or operational policies, and executing its operations, ICANN the organization should take the Human Rights Core Value into account. In order to do so ICANN the organization should propose a framework to the community, which should include multistakeholder involvement in its development, and regular review.” > > > Anne E. Aikman-Scalese > Of Counsel > 520.629.4428 <(520)%20629-4428> office > 520.879.4725 <(520)%20879-4725> fax > AAikman(a)lrrc.com > _____________________________ > <image004.png> > Lewis Roca Rothgerber Christie LLP > One South Church Avenue, Suite 700 > Tucson, Arizona 85701-1611 > lrrc.com > > <image005.png> > > > This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. > _______________________________________________ > Ws2-hr mailing list > Ws2-hr(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-hr > > > This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. > _______________________________________________ > Ws2-hr mailing list > Ws2-hr(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-hr > > _______________________________________________ > Ws2-hr mailing list > Ws2-hr(a)icann.org > https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ------------------------------ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

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Redline and also excerpt from Considerations re ICANN.org reviewing framework with SOs and ACs
by Aikman-Scalese, Anne Aug. 9, 2017

Aug. 9, 2017

In the Considerations document, we also have language which tries to protect the role of SOs and ACs as follows: “When developing corporate or operational policies, and executing its operations, ICANN the organization should take the Human Rights Core Value into account. In order to do so ICANN the organization should propose a framework to the community, which should include multistakeholder involvement in its development, and regular review.” Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman(a)lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image004.png@01D31046.6B425220] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> [cid:image001.png@01D31045.F9F92940] ________________________________ 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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Drafting Team member - Suggested Text [renamed subject line]
by McAuley, David Aug. 9, 2017

Aug. 9, 2017

As part of the drafting team recruited yesterday during the call, I would like to suggest text to consider (BTW – I don’t think there is a separate “drafting team” email list for this discrete effort). BACKGROUND: Here is text as proposed by Niels prior to our call yesterday (the original text is in his email forwarded below): 3.1 When examining its operations, ICANN the organization could consider using a framework like the UNGPs as well as specific instruments such as HRIAs to assess its impact on Human Rights, and offer remediation. However, it is up to ICANN the organization to decide the most appropriate framework and instrument to do this. The results of ICANN the organization's analysis should be reflected in ICANN’s annual reporting. I suggested a different text on list yesterday but I have tweaked it in my latest suggested text below to take account of two points Kavouss made on list. First, I use the word “mechanism” instead of “framework” and I add a reference to voluntary remediation, agreeing with Kavouss to attempt to address comments by several country reps to the group. MY LATEST SUGGESTED TEXT: 3.1 When examining its operations, ICANN the organization could consider using a mechanism like the UNGPs as well as specific instruments such as HRIAs to assess its impact on Human Rights. It could also consider, in appropriate cases, voluntary remediation efforts. However, it is up to ICANN the organization to decide whether to do so, and if so how (i.e., choosing the most appropriate framework, instrument, or remediation effort). The results of ICANN the organization's analysis should be reflected in ICANN’s annual reporting. Best regards, David David McAuley Sr International Policy & Business Development Manager Verisign Inc. 703-948-4154 -----Original Message----- From: ws2-hr-bounces(a)icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, August 08, 2017 3:55 PM To: ws2-hr(a)icann.org Subject: [EXTERNAL] [Ws2-hr] red line Hi all, Original text: When examining its operations, ICANN the organization could also consider instruments such as HRIAs to assess their impact on Human Rights. However, this is up to ICANN the organization to develop and implement. The results of such HRIAs should be reflected in ICANN’s annual reporting. Text proposed by me on the call: When examining its operations, ICANN the organization could consider using a framework like the UNGPs as well as specific instruments such as HRIAs to assess its impact on Human Rights, and offer remediation. However, it is up to ICANN the organization to decide the most appropriate framework and instrument to do this. The results of ICANN the organization's analysis should be reflected in ICANN’s annual reporting. I am greatly looking forward to the suggestion of the drafting team. Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr(a)icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

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