HR-FOI -On the need for Practical Reflection on ICANN Processes and Protocols

March 1, 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@lrrc.com<mailto:AAikman@lrrc.com>

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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@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@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@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:

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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.

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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:
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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.
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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.
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Anne
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Anne E. Aikman-Scalese
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Of Counsel
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520.629.4428 office
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AAikman@lrrc.com<mailto:AAikman@lrrc.com>
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_______________________________
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Lewis Roca Rothgerber Christie LLP
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One South Church Avenue, Suite 700
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Tucson, Arizona 85701-1611
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lrrc.com
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-----Original Message-----
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From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On
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Behalf Of Niels ten Oever
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Sent: Tuesday, February 28, 2017 11:49 AM
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To: Kavouss Arasteh
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Cc: <ws2-hr@icann.org<mailto:ws2-hr@icann.org>>
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Subject: Re: [Ws2-hr] Proposed Agenda FIRST READING considerations
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document Feb 28 19:00 UTC
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Dear Kavouss,
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There are no policies developed in the GAC, so this makes the GAC different from the GNSO, CCNSO, and ASO, right?
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Best,
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Niels
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On Tue, Feb 28, 2017 at 07:36:16PM +0100, Kavouss Arasteh wrote:
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Dear Niels,
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I understand that the question referring to GAC Advice  then pls add
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the same text to the Policy development under GNSO and CCNSO by
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replacing GAC by these two entities.
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I have proposed that version earlier but you did not consider it.
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What I wish is to treat all entities providing Recommendations and
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Advice EQUALY.
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Some GNSO, IPC, ccNSO participants pushing to marginalize GAC again.
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Pls kindly understand the problem
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Regards
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Kavouss
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2017-02-28 12:38 GMT+01:00 Niels ten Oever <lists@nielstenoever.net<mailto:lists@nielstenoever.net>>:
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Dear Kavouss,
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On 02/28/2017 10:03 AM, Kavouss Arasteh wrote:
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Dear Niels,
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Thank you very much for the file.
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I still have serious difficulties to treat  GNSO and ccNSO
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Recommendations from  GAC Advice. Unless all three are not treated
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equally , I would continue to object to the texts proposed.
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The consideration is responding to a direct question about the GAC,
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that is why only GAC is explicitly mentioned there.
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I also have problem with the term " HUMAN RIGHTS BYLAW as there is
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no Bylaw for human rights .Perhaps we should say Human Rights
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mentioned in Bylaw.
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OK, I propose that we consistently use Human Rights Core Value, so
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that there will be no confusion about what is meant.
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I therefore attaching my comments in a revised version of the doc.,
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Thanks,
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Niels
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Regards
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Kavouss
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2017-02-28 8:26 GMT+01:00 <Jorge.Cancio@bakom.admin.ch
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<mailto:Jorge.Cancio@bakom.admin.ch>>:
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Dear Niels and all____
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Further to the comment below, please find attached a version of the
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document with further suggestions and comments/questions (which I
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have also included in the Google Doc).____
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It is unfortunate that I can no longer attend the meetings as they
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always are at the same time and at least in Europe fall in the
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evening, where other commitments and obligations of a different
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nature are due. Maybe we could reconsider the non-rotation of the
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meetings…____
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Nonetheless, I hope that these comments may be taken on board during
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today’s call. ____
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@staff: please mention my comments during the call, as if I was
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there J____
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Kind regards____
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Jorge ____
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*Von:*Cancio Jorge BAKOM
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*Gesendet:* Dienstag, 28. Februar 2017 06:38
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*An:* Niels ten Oever <lists@nielstenoever.net
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<mailto:lists@nielstenoever.net>>; ws2-hr@icann.org<mailto:ws2-hr@icann.org>
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<mailto:ws2-hr@icann.org>
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*Betreff:* AW: [Ws2-hr] Proposed Agenda FIRST READING considerations
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document Feb 28 19:00 UTC____
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Dear Niels____
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While I will not be able to attend the call this evening, I disagree
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with the wording of this sentence:____
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"However, there was not sufficient support to recommend the
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application of the UN Guiding Principles for the /interpretation /of
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the Bylaw."____
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The WG did not reach consensus or did not reach agreement - which is
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the way we worked. Saying that "there was not sufficient support"
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mischaracterizes the way we work(ed) and may imply that there was
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some sort of voting, which was not the case.____
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Therefore I would propose the following text:____
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"However, there was no agreement on whether to recommend the
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application of the UN Guiding Principles for the /interpretation /of
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the Bylaw."____
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Hope you may take this on board.____
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regards____
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Jorge____
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------------------------------------------------------------
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*Von:* Niels ten Oever <lists@nielstenoever.net
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<mailto:lists@nielstenoever.net>>
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*Datum:* 28. Februar 2017 um 01:16:01 MEZ
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*An:* ws2-hr@icann.org<mailto:ws2-hr@icann.org> <mailto:ws2-hr@icann.org><ws2-hr@icann.org
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<mailto:ws2-hr@icann.org>>
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*Betreff:* [Ws2-hr] Proposed Agenda FIRST READING considerations
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document Feb 28 19:00 UTC____
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Dear all,
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It is with great pleasure that I can share with you the draft
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agenda
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for
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the meeting of February 28, 19:00 UTC.
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The drafting group worked hard after the constructive session
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last
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week.
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With this document we might have arrived at a new milestone.
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I am very much looking forward to have a first reading of the
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Considerations document with you in the call. As previously
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discussed,
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the Consideration document will be merged into one document
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with the
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FoI
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upon approval by the subgroup.
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I am greatly looking forward to discuss this with you on the call.
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Please find the proposed agenda underneath and attached, as
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well as
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the
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document.
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1. Administrivia
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Roll call, absentees, SoIs, etc
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2. First reading (of two) of the Considerations document
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prepared by
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the
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drafting team
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3. AOB
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The document can also be found here:
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https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3O
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i5NYwN4AItZjkY/edit
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<https://docs.google.com/document/d/1KJfmglI5wBib7T5hgIMMysO7x6J3O
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i5NYwN4AItZjkY/edit>
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Please let me know if you have any question or suggestions.
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All the best,
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Niels
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--
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Niels ten Oever
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Head of Digital
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Article 19
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www.article19.org<http://www.article19.org> <http://www.article19.org>
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PGP fingerprint    8D9F C567 BEE4 A431 56C4
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_______________________________________________
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Ws2-hr mailing list
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Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> <mailto:Ws2-hr@icann.org>
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--
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Niels ten Oever
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Niels ten Oever
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Head of Digital
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Article 19
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www.article19.org<http://www.article19.org>
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PGP fingerprint    2458 0B70 5C4A FD8A 9488
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________________________________
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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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Head of Digital

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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.

Aikman-Scalese, Anne

Aikman-Scalese, Anne

Aikman-Scalese, Anne

Kavouss Arasteh

Aikman-Scalese, Anne

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