Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss

2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com>:

...

Hi all,

Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss:

Considering ICANN's scope and mission, when should ICANN uphold human rights?

- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application)

- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?

Best

-- Farzaneh

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-- Farzaneh

Paul Yes , the questions to be submitted to Human Rights Group could be around what you described Tks Kavouss Sent from my iPhone

On 4 Sep 2016, at 19:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

Dear Farzaneh

Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect?

Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary.

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can.

The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights.

Best

Farzaneh

On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss

2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com>: Hi all,

Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss:

Considering ICANN's scope and mission, when should ICANN uphold human rights?

- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application)

- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?

Best

-- Farzaneh

_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

-- Farzaneh

On Sep 4, 2016, at 2:12 PM, Tijani BEN JEMAA <tijani.benjemaa@topnet.tn> wrote:

I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be:

What substance we see in the phrase human rights inside ICANN Mission? When, if ever, ICANN should give that substance (whatever it may be) effect?

It might be useful to consider this question with regard to the specific roles undertaken in the name “ICANN”… For example, I could understand having the “ICANN community” provide due consideration in the policy development process to any potential issue raised with regard to human rights implications of a proposed policy; it’s less clear whether one wants “ICANN Global Domains Division” or ICANN’s PTI” weighing human rights issues during the policy implementation process. It is fairly important to be clear about the desired outcome of any framework, since application would have very different implications when done with different portions of ICANN’s eclectic structure. /John Disclaimer: my views alone.

Dear Mr. Niels ten Oever Thank you very much for yr reactions I hope you have kindly recognized that: A) this issue can only be discussed at SubGroup established for FOI for Human Rights AND NOT IN THE SUBGROUP ON SO/AC ACCOUNTABILITY B) thank you for the list of the reference documents that you have made but please kindly study the complete list discussed at Human Rights Group chaired Mr, Leon Sanchez You would not a complete list there. If you , as the One of the Co-Chair of the Group proposed a selected list , I have no problem with that but 1) this issue must be discussed at your group and not accountability Group and 2) we MUST avoid repeating discussions that we have had. Under Mr. Sanchez Group during four or five months Tks Arasteh Sent from my iPhone

On 5 Sep 2016, at 05:58, Niels ten Oever <lists@nielstenoever.net> wrote:

Dear all,

Great to see the discussion developing here. If I look at the questions brought up by Farzane, structured by Paul (and confirmed by Tijani), I see some overlap with the questions that were brought up in the draft FoI we've been working on as Google Doc.

...

...

* What substance we see in the phrase human rights inside ICANN Mission?

For this question we had a preliminary answer, namely that we could understand the following documents as 'Internationally recognized human rights':

UDHR: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng ICCPR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx CEDAW: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx CRPD: http://www.un.org/disabilities/convention/conventionfull.shtml DRIPS: http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx

This could help narrow down that part of the discussion.

When we look at the second question and clarification by John:

...

...

* When, if ever, ICANN should give that substance (whatever it may be) effect?

This might mean different things for:

- the ICANN community (SOs and ACs) - ICANN the organization - Contracted parties - policy development process

It might helps us to differentiate or list what the different relevant activities of these (or other) parts of the ICANN ecosystem and understand what (potential) human rights impacts they might have?

Just a suggestions.

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@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

I think there is a confusion that needs to be addressed here and hopefully it won't need clarification anymore. The SO/AC accountability sub-group is being mentioned here because Kavouss is confusing this group with SO/AC accountability subgroup. This confusion comes from the fact that I am one of the co-rapporteurs for that sub-group. That is a separate sub-group which focusses on SO/AC accountability. I am merely a participant in human rights sub-group. Which is this group! I sent the questions to this group because during the last week session I volunteered to send questions. Best Farzaneh On 5 Sep 2016 8:31 a.m., "Arasteh" <kavouss.arasteh@gmail.com> wrote:

Dear Mr. Niels ten Oever Thank you very much for yr reactions I hope you have kindly recognized that: A) this issue can only be discussed at SubGroup established for FOI for Human Rights AND NOT IN THE SUBGROUP ON SO/AC ACCOUNTABILITY B) thank you for the list of the reference documents that you have made but please kindly study the complete list discussed at Human Rights Group chaired Mr, Leon Sanchez You would not a complete list there. If you , as the One of the Co-Chair of the Group proposed a selected list , I have no problem with that but 1) this issue must be discussed at your group and not accountability Group and 2) we MUST avoid repeating discussions that we have had. Under Mr. Sanchez Group during four or five months Tks Arasteh Sent from my iPhone

...

On 5 Sep 2016, at 05:58, Niels ten Oever <lists@nielstenoever.net> wrote:

Dear all,

Great to see the discussion developing here. If I look at the questions brought up by Farzane, structured by Paul (and confirmed by Tijani), I see some overlap with the questions that were brought up in the draft FoI we've been working on as Google Doc.

...

...

* What substance we see in the phrase human rights inside ICANN Mission?

For this question we had a preliminary answer, namely that we could understand the following documents as 'Internationally recognized human rights':

UDHR: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng ICCPR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx CEDAW: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx CRPD: http://www.un.org/disabilities/convention/conventionfull.shtml DRIPS: http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx

This could help narrow down that part of the discussion.

When we look at the second question and clarification by John:

...

...

* When, if ever, ICANN should give that substance (whatever it may be) effect?

This might mean different things for:

- the ICANN community (SOs and ACs) - ICANN the organization - Contracted parties - policy development process

It might helps us to differentiate or list what the different relevant activities of these (or other) parts of the ICANN ecosystem and understand what (potential) human rights impacts they might have?

Just a suggestions.

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@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

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Dear all, I am glad to see the discussion is vibrant in this subgroup. I have, however one point of clarification. I accept that my concern might be a consequence of my lack of knowledge in english but I feel that when we say “uphold” we are going a step further than the intended spirit of “respecting” human rights as concluded in our WS1 report. If that is in fact the case, I would encourage the subgroup to go back to the root of the discussion considering ICANN to respect rather than upholding human rights. I am happy to read comments and grateful for any corrections to any lack of knowledge I might be displaying. Best regards, León

El 05/09/2016, a las 4:01 a.m., Arasteh <kavouss.arasteh@gmail.com> escribió:

Dear Mrs. Badii Thank you very much for clarifications Yes unfortunately I thought you were intervening as co-chair of accountability group for which I regret but your reaction was unfair, instead you should have clarified the matter immediately and those who gas always been against me used this opportunity and categorised my comment "Silly" Now the matter is clear and issue is closed Regards Arasteh

Sent from my iPhone

On 5 Sep 2016, at 10:53, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> wrote:

...

I think there is a confusion that needs to be addressed here and hopefully it won't need clarification anymore.

The SO/AC accountability sub-group is being mentioned here because Kavouss is confusing this group with SO/AC accountability subgroup. This confusion comes from the fact that I am one of the co-rapporteurs for that sub-group. That is a separate sub-group which focusses on SO/AC accountability.

I am merely a participant in human rights sub-group. Which is this group! I sent the questions to this group because during the last week session I volunteered to send questions.

Best

Farzaneh

On 5 Sep 2016 8:31 a.m., "Arasteh" <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote: Dear Mr. Niels ten Oever Thank you very much for yr reactions I hope you have kindly recognized that: A) this issue can only be discussed at SubGroup established for FOI for Human Rights AND NOT IN THE SUBGROUP ON SO/AC ACCOUNTABILITY B) thank you for the list of the reference documents that you have made but please kindly study the complete list discussed at Human Rights Group chaired Mr, Leon Sanchez You would not a complete list there. If you , as the One of the Co-Chair of the Group proposed a selected list , I have no problem with that but 1) this issue must be discussed at your group and not accountability Group and 2) we MUST avoid repeating discussions that we have had. Under Mr. Sanchez Group during four or five months Tks Arasteh Sent from my iPhone

...

On 5 Sep 2016, at 05:58, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:

Dear all,

Great to see the discussion developing here. If I look at the questions brought up by Farzane, structured by Paul (and confirmed by Tijani), I see some overlap with the questions that were brought up in the draft FoI we've been working on as Google Doc.

...

...

* What substance we see in the phrase human rights inside ICANN Mission?

For this question we had a preliminary answer, namely that we could understand the following documents as 'Internationally recognized human rights':

UDHR: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng <http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng> ICCPR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx> CEDAW: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx> CRPD: http://www.un.org/disabilities/convention/conventionfull.shtml <http://www.un.org/disabilities/convention/conventionfull.shtml> DRIPS: http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx <http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx>

This could help narrow down that part of the discussion.

When we look at the second question and clarification by John:

...

...

* When, if ever, ICANN should give that substance (whatever it may be) effect?

This might mean different things for:

- the ICANN community (SOs and ACs) - ICANN the organization - Contracted parties - policy development process

It might helps us to differentiate or list what the different relevant activities of these (or other) parts of the ICANN ecosystem and understand what (potential) human rights impacts they might have?

Just a suggestions.

Best,

Niels

-- 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 _______________________________________________ Ws2-hr mailing list 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>

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Léon, Thank you for this reminder; indeed, it was about respecting Human Rights. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 -----------------------------------------------------------------------------

Le 5 sept. 2016 à 20:02, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx> a écrit :

Dear all,

I am glad to see the discussion is vibrant in this subgroup.

I have, however one point of clarification. I accept that my concern might be a consequence of my lack of knowledge in english but I feel that when we say “uphold” we are going a step further than the intended spirit of “respecting” human rights as concluded in our WS1 report.

If that is in fact the case, I would encourage the subgroup to go back to the root of the discussion considering ICANN to respect rather than upholding human rights.

I am happy to read comments and grateful for any corrections to any lack of knowledge I might be displaying.

Best regards,

León

...

El 05/09/2016, a las 4:01 a.m., Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> escribió:

Dear Mrs. Badii Thank you very much for clarifications Yes unfortunately I thought you were intervening as co-chair of accountability group for which I regret but your reaction was unfair, instead you should have clarified the matter immediately and those who gas always been against me used this opportunity and categorised my comment "Silly" Now the matter is clear and issue is closed Regards Arasteh

Sent from my iPhone

On 5 Sep 2016, at 10:53, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> wrote:

...

I think there is a confusion that needs to be addressed here and hopefully it won't need clarification anymore.

The SO/AC accountability sub-group is being mentioned here because Kavouss is confusing this group with SO/AC accountability subgroup. This confusion comes from the fact that I am one of the co-rapporteurs for that sub-group. That is a separate sub-group which focusses on SO/AC accountability.

I am merely a participant in human rights sub-group. Which is this group! I sent the questions to this group because during the last week session I volunteered to send questions.

Best

Farzaneh

On 5 Sep 2016 8:31 a.m., "Arasteh" <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote: Dear Mr. Niels ten Oever Thank you very much for yr reactions I hope you have kindly recognized that: A) this issue can only be discussed at SubGroup established for FOI for Human Rights AND NOT IN THE SUBGROUP ON SO/AC ACCOUNTABILITY B) thank you for the list of the reference documents that you have made but please kindly study the complete list discussed at Human Rights Group chaired Mr, Leon Sanchez You would not a complete list there. If you , as the One of the Co-Chair of the Group proposed a selected list , I have no problem with that but 1) this issue must be discussed at your group and not accountability Group and 2) we MUST avoid repeating discussions that we have had. Under Mr. Sanchez Group during four or five months Tks Arasteh Sent from my iPhone

...

On 5 Sep 2016, at 05:58, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:

Dear all,

Great to see the discussion developing here. If I look at the questions brought up by Farzane, structured by Paul (and confirmed by Tijani), I see some overlap with the questions that were brought up in the draft FoI we've been working on as Google Doc.

...

...

* What substance we see in the phrase human rights inside ICANN Mission?

For this question we had a preliminary answer, namely that we could understand the following documents as 'Internationally recognized human rights':

UDHR: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng <http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng> ICCPR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx> CEDAW: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx> CRPD: http://www.un.org/disabilities/convention/conventionfull.shtml <http://www.un.org/disabilities/convention/conventionfull.shtml> DRIPS: http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx <http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx>

This could help narrow down that part of the discussion.

When we look at the second question and clarification by John:

...

...

* When, if ever, ICANN should give that substance (whatever it may be) effect?

This might mean different things for:

- the ICANN community (SOs and ACs) - ICANN the organization - Contracted parties - policy development process

It might helps us to differentiate or list what the different relevant activities of these (or other) parts of the ICANN ecosystem and understand what (potential) human rights impacts they might have?

Just a suggestions.

Best,

Niels

-- 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 _______________________________________________ Ws2-hr mailing list 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>

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Respect is in the bylaw as well as Annex 6 of the CCWG report, so I think we have consensus on it. We still have to define 'respect' though. For this, this part of the draft FoI document (https://docs.google.com/document/d/1emqmzyB9_0vm6oKxhIWZ47L7lxcFKUBHVnkBYUOs... ) might be helpful: ________ The responsibility to respect human rights requires that business enterprises: (a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. The responsibility of business enterprises to respect human rights applies to all enterprises regardless of their size, sector, operational context, ownership and structure. Nevertheless, the scale and complexity of the means through which enterprises meet that responsibility may vary according to these factors and with the severity of the enterprise’s adverse human rights impacts. In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances, including: (a) A policy commitment to meet their responsibility to respect human rights; (b) A human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights; (c) Processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute. _______ I think especially the first point (b) touches upon Farzi's question. Happy to discuss. Best, Niels On 09/06/2016 10:30 AM, Rudolph Daniel wrote:

Regarding : uphold v respect

I am on the same page as Leon here. 'respect' is a vastly different thought process to 'uphold' within the context of consensus. I have had to correct myself of late to focus on respect, not uphold.

Is there concensus on this within the WS2 group? RD

On Sep 5, 2016 6:12 PM, "Tijani BEN JEMAA" <tijani.benjemaa@benjemaa.com <mailto:tijani.benjemaa@benjemaa.com>> wrote:

Léon,

Thank you for this reminder; indeed, it was about respecting Human Rights.

----------------------------------------------------------------------------- *Tijani BEN JEMAA* Executive Director Mediterranean Federation of Internet Associations (*FMAI*) Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114> +216 52 385 114 <tel:%2B216%2052%20385%20114> -----------------------------------------------------------------------------

...

Le 5 sept. 2016 à 20:02, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx <mailto:leonfelipe@sanchez.mx>> a écrit :

Dear all,

I am glad to see the discussion is vibrant in this subgroup.

I have, however one point of clarification. I accept that my concern might be a consequence of my lack of knowledge in english but I feel that when we say “uphold” we are going a step further than the intended spirit of “respecting” human rights as concluded in our WS1 report.

If that is in fact the case, I would encourage the subgroup to go back to the root of the discussion considering ICANN to respect rather than upholding human rights.

I am happy to read comments and grateful for any corrections to any lack of knowledge I might be displaying.

Best regards,

León

...

El 05/09/2016, a las 4:01 a.m., Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> escribió:

Dear Mrs. Badii Thank you very much for clarifications Yes unfortunately I thought you were intervening as co-chair of accountability group for which I regret but your reaction was unfair, instead you should have clarified the matter immediately and those who gas always been against me used this opportunity and categorised my comment "Silly" Now the matter is clear and issue is closed Regards Arasteh

Sent from my iPhone

On 5 Sep 2016, at 10:53, farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>> wrote:

...

I think there is a confusion that needs to be addressed here and hopefully it won't need clarification anymore.

The SO/AC accountability sub-group is being mentioned here because Kavouss is confusing this group with SO/AC accountability subgroup. This confusion comes from the fact that I am one of the co-rapporteurs for that sub-group. That is a separate sub-group which focusses on SO/AC accountability.

I am merely a participant in human rights sub-group. Which is this group! I sent the questions to this group because during the last week session I volunteered to send questions.

Best

Farzaneh

On 5 Sep 2016 8:31 a.m., "Arasteh" <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:

Dear Mr. Niels ten Oever Thank you very much for yr reactions I hope you have kindly recognized that: A) this issue can only be discussed at SubGroup established for FOI for Human Rights AND NOT IN THE SUBGROUP ON SO/AC ACCOUNTABILITY B) thank you for the list of the reference documents that you have made but please kindly study the complete list discussed at Human Rights Group chaired Mr, Leon Sanchez You would not a complete list there. If you , as the One of the Co-Chair of the Group proposed a selected list , I have no problem with that but 1) this issue must be discussed at your group and not accountability Group and 2) we MUST avoid repeating discussions that we have had. Under Mr. Sanchez Group during four or five months Tks Arasteh Sent from my iPhone

> On 5 Sep 2016, at 05:58, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote: > > Dear all, > > Great to see the discussion developing here. If I look at the questions > brought up by Farzane, structured by Paul (and confirmed by Tijani), I > see some overlap with the questions that were brought up in the draft > FoI we've been working on as Google Doc. > >>> * What substance we see in the phrase human rights inside >>> ICANN Mission? > > For this question we had a preliminary answer, namely that we could > understand the following documents as 'Internationally recognized human > rights': > > UDHR: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng <http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng> > ICCPR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx> > ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx> > ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx> > CEDAW: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx> > CRPD: http://www.un.org/disabilities/convention/conventionfull.shtml <http://www.un.org/disabilities/convention/conventionfull.shtml> > DRIPS: http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx <http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx> > > This could help narrow down that part of the discussion. > > When we look at the second question and clarification by John: > >>> * When, if ever, ICANN should give that substance (whatever >>> it may be) effect? > > This might mean different things for: > > - the ICANN community (SOs and ACs) > - ICANN the organization > - Contracted parties > - policy development process > > It might helps us to differentiate or list what the different relevant > activities of these (or other) parts of the ICANN ecosystem and > understand what (potential) human rights impacts they might have? > > Just a suggestions. > > Best, > > Niels > > -- > 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 > _______________________________________________ > Ws2-hr mailing list > 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> _______________________________________________ Ws2-hr mailing list 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>

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-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

A few quick comments on the thread above. It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs. As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw. I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition: (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission. I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation. Greg On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

Disclaimer: my views alone. Feel free to use, share, or discard as desired.

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I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue: 1. The Bylaw uses the verb "respect." 2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles. 3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect." 4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.). 5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either: a. End up with a definition of "respect" that varies from the Ruggie Principles, or b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose. 6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations. Greg On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

...

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org <mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>> wrote:

...

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

Disclaimer: my views alone. Feel free to use, share, or discard as desired.

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Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing? P Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 6, 2016 10:58 AM To: Nigel Roberts <nigel@channelisles.net> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue: 1. The Bylaw uses the verb "respect." 2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles. 3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect." 4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.). 5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either: a. End up with a definition of "respect" that varies from the Ruggie Principles, or b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose. 6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations. Greg On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net> > wrote: Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions. It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply. I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard. Re-definition, is not the way forward, I suggest. On 06/09/16 03:12, Greg Shatan wrote: A few quick comments on the thread above. It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs. As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw. I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition: (b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission. I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation. Greg On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org <mailto:jcurran@istaff.org> <mailto:jcurran@istaff.org <mailto:jcurran@istaff.org> >> wrote: On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net> <mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net> >> wrote: ... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts. Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise. Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided... ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases. /John Disclaimer: my views alone. Feel free to use, share, or discard as desired. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@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> _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

Paul, My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue. Greg On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch> wrote:

Good question

Jorge

*Von:* ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Dienstag, 6. September 2016 17:35 *An:* 'Greg Shatan' <gregshatanipc@gmail.com>; 'Nigel Roberts' < nigel@channelisles.net> *Cc:* ws2-hr@icann.org *Betreff:* Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

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*From:* ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org <ws2-hr-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Tuesday, September 6, 2016 10:58 AM *To:* Nigel Roberts <nigel@channelisles.net> *Cc:* ws2-hr@icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org

<mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net

<mailto:lists@nielstenoever.net>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

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Regarding "address human rights impacts with which they are involved", I am quite stuck on the issue of "content regulation" when ICANN awards a TLD contract. For example, a registry operator applies in the next round for "(dot)buychildporn". I personally think there is a human rights issue here in which ICANN is directly involved within the scope of its mission and operations. What about a TLD application for (dot)legalizeslavery. ICANN is very directly involved in the award of TLDs. It signs contracts and determines when those contracts are renewed or revoked. Very difficult indeed to see how anyone could say that ICANN would not be obligated, by this definition of "respect" to review potential adverse human rights impact of a TLD application. No advisory or policy recommending body in the ICANN Community currently has responsibility to review Human Rights impact in the applications for new TLDs. There is no mechanism for doing so and arguably the implications for free speech are quite broad if we start saying that certain proposed purposes for certain TLDs (as shown in the application relevant application) have adverse human rights impacts. Will we now place this responsibility on the GAC as a public policy matter? What if GNSO disagrees and prefers to uphold freedom of expression even if the expression is ugly and has an adverse impact on Human Rights? So it appears we may not be able to deal with this within the community without establishing a Human Rights Objection process - but again what about the free speech aspects of this? Is a Human Rights Objection process in and of itself a content regulation provision? Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax 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@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 06, 2016 9:40 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Whilst I (think I) see where you are heading, Greg - and I tend to agree, although I’m not sure what ’seeking to prevent or mitigate’ exactly means in terms of exerting pressure on third parties - the ‘resurfacing those comments’ could be helpful as I am slightly lost here. The way I read Ruggie’s definition of ‘respect’ is what is stated in principle #11: 'Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’ It’s the ’this means’ part. (‘Part (b)’ in principle 13 refers to part of a ‘responsibility’ that follows, i.e. the requirement as described in this ‘part (b)’) Simply put, following my interpretation of Ruggie’s ‘respect’ definition, ICANN should avoid infringing on the human rights of others. And it does not have to address adverse human rights impacts with which it is not involved. Does that make sense? ;-) -Bastiaan

On 06 Sep 2016, at 17:43, Greg Shatan <gregshatanipc@gmail.com> wrote:

Paul,

My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.

Greg

On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch> wrote: Good question

Jorge

Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Dienstag, 6. September 2016 17:35 An: 'Greg Shatan' <gregshatanipc@gmail.com>; 'Nigel Roberts' <nigel@channelisles.net> Cc: ws2-hr@icann.org Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 6, 2016 10:58 AM To: Nigel Roberts <nigel@channelisles.net> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org

<mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net

<mailto:lists@nielstenoever.net>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

Disclaimer: my views alone. Feel free to use, share, or discard as desired.

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Anne, It would be helpful to go back to the current AGB and see how such domains would currently be treated. ICANN (including the GNSO PDP process) may already have dealt with that. Tying this discussion to "content regulation" also gets us into other sticky wickets. Is restricting the TLDs that can be applied for "content regulation"? I would submit that it's not. Is restricting the TLDs that can be applied for a violation of the right to "free expression"? I'm skeptical about that as well, and even if it is, the right to free expression is neither boundless or immune to being balanced with other rights, including but not limited to human rights. Is "content regulation" a loaded term in the ICANN context? It is now, based on the new bylaws. Just as ICANNnauts have used "policy" and "implementation" distinctions to to rule things in and out of scope, branding something as "content regulation" puts it in a box that at the least disfavors doing that thing, whatever it is. More succinctly, if "content regulation" is something that ICANN doesn't do, then people will take things that they don't want ICANN to do and call them "content regulation." Do we have a common understanding of what "content regulation" means in the ICANN context, or even what "regulation" means in the ICANN context? Or even "content"? And the corollary, what isn't "content regulation"? I really doubt it. Is it within the remit of this group to further define "content regulation"? I really don't think so. We may be better off looking at creating a Framework of Interpretation (and that is our remit, broadly speaking) that does not require a definition and common understanding of "content regulation" in order to guide future reference to and implementation of the Bylaw. If we follow the "content regulation" path, we are likely to end up not only down a rabbit hole, but in an entire network of rabbit holes. Greg On Tue, Sep 6, 2016 at 1:31 PM, Dr. Tatiana Tropina <t.tropina@mpicc.de> wrote:

Dear Anne,

A very short response with my 2c - my first thought is that the issue of "(dot)buychildporn" and alike would be the issue of (applicable) criminal law rather than human rights issue.

Warm regards

Tanya

On 06/09/16 19:21, Aikman-Scalese, Anne wrote:

...

Regarding "address human rights impacts with which they are involved", I am quite stuck on the issue of "content regulation" when ICANN awards a TLD contract. For example, a registry operator applies in the next round for "(dot)buychildporn". I personally think there is a human rights issue here in which ICANN is directly involved within the scope of its mission and operations.

What about a TLD application for (dot)legalizeslavery. ICANN is very directly involved in the award of TLDs. It signs contracts and determines when those contracts are renewed or revoked. Very difficult indeed to see how anyone could say that ICANN would not be obligated, by this definition of "respect" to review potential adverse human rights impact of a TLD application.

No advisory or policy recommending body in the ICANN Community currently has responsibility to review Human Rights impact in the applications for new TLDs. There is no mechanism for doing so and arguably the implications for free speech are quite broad if we start saying that certain proposed purposes for certain TLDs (as shown in the application relevant application) have adverse human rights impacts. Will we now place this responsibility on the GAC as a public policy matter? What if GNSO disagrees and prefers to uphold freedom of expression even if the expression is ugly and has an adverse impact on Human Rights?

So it appears we may not be able to deal with this within the community without establishing a Human Rights Objection process - but again what about the free speech aspects of this? Is a Human Rights Objection process in and of itself a content regulation provision?

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax 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@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 06, 2016 9:40 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Whilst I (think I) see where you are heading, Greg - and I tend to agree, although I’m not sure what ’seeking to prevent or mitigate’ exactly means in terms of exerting pressure on third parties - the ‘resurfacing those comments’ could be helpful as I am slightly lost here.

The way I read Ruggie’s definition of ‘respect’ is what is stated in principle #11:

'Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’

It’s the ’this means’ part.

(‘Part (b)’ in principle 13 refers to part of a ‘responsibility’ that follows, i.e. the requirement as described in this ‘part (b)’)

Simply put, following my interpretation of Ruggie’s ‘respect’ definition, ICANN should avoid infringing on the human rights of others. And it does not have to address adverse human rights impacts with which it is not involved.

Does that make sense? ;-)

-Bastiaan

...

On 06 Sep 2016, at 17:43, Greg Shatan <gregshatanipc@gmail.com> wrote:

Paul,

My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.

Greg

On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch> wrote: Good question

Jorge

Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Dienstag, 6. September 2016 17:35 An: 'Greg Shatan' <gregshatanipc@gmail.com>; 'Nigel Roberts' <nigel@channelisles.net> Cc: ws2-hr@icann.org Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 6, 2016 10:58 AM To: Nigel Roberts <nigel@channelisles.net> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org

<mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net

<mailto:lists@nielstenoever.net>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

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Tatiana, I see your point. But I suggest that we would be better off using a less loaded example than "content regulation," because that will fog the issue we really want to deal with, which is what are "protection" and "enforcement" of human rights, versus what is "respect" for human rights. Greg On Tue, Sep 6, 2016 at 2:01 PM, Dr. Tatiana Tropina <t.tropina@mpicc.de> wrote:

Greg,

I think the whole discussion on the "content regulation" (whether we define it or not here) reflects the concerns about "enforcement" and "protection".

While we can abandon the use of the term "content regulation" for the sake of avoiding the maze of rabbit holes, the enforcement and protection issues will be on the table anyway, and they will refer to the TLD issues as well.

Fortunately, we have restrictions in the mission re content regulation and in the HR bylaw re enforcement and protection. I think that is enough to save ICANN from the content regulation (whatever it means!). But we have to figure out where is the silver line between "respect" and the no-go Human Rights watchdog actions. I think the expression "content regulation" is used here as it reflect the concerns that ICANN will step into this area of enforcement.

Best,

Tanya On 06/09/16 19:51, Greg Shatan wrote:

Anne, It would be helpful to go back to the current AGB and see how such domains would currently be treated. ICANN (including the GNSO PDP process) may already have dealt with that.

Tying this discussion to "content regulation" also gets us into other sticky wickets.

Is restricting the TLDs that can be applied for "content regulation"? I would submit that it's not.

Is restricting the TLDs that can be applied for a violation of the right to "free expression"? I'm skeptical about that as well, and even if it is, the right to free expression is neither boundless or immune to being balanced with other rights, including but not limited to human rights.

Is "content regulation" a loaded term in the ICANN context? It is now, based on the new bylaws. Just as ICANNnauts have used "policy" and "implementation" distinctions to to rule things in and out of scope, branding something as "content regulation" puts it in a box that at the least disfavors doing that thing, whatever it is. More succinctly, if "content regulation" is something that ICANN doesn't do, then people will take things that they don't want ICANN to do and call them "content regulation."

Do we have a common understanding of what "content regulation" means in the ICANN context, or even what "regulation" means in the ICANN context? Or even "content"? And the corollary, what isn't "content regulation"? I really doubt it.

Is it within the remit of this group to further define "content regulation"? I really don't think so.

We may be better off looking at creating a Framework of Interpretation (and that is our remit, broadly speaking) that does not require a definition and common understanding of "content regulation" in order to guide future reference to and implementation of the Bylaw.

If we follow the "content regulation" path, we are likely to end up not only down a rabbit hole, but in an entire network of rabbit holes.

Greg

On Tue, Sep 6, 2016 at 1:31 PM, Dr. Tatiana Tropina <t.tropina@mpicc.de> wrote:

...

Dear Anne,

A very short response with my 2c - my first thought is that the issue of "(dot)buychildporn" and alike would be the issue of (applicable) criminal law rather than human rights issue.

Warm regards

Tanya

On 06/09/16 19:21, Aikman-Scalese, Anne wrote:

...

Regarding "address human rights impacts with which they are involved", I am quite stuck on the issue of "content regulation" when ICANN awards a TLD contract. For example, a registry operator applies in the next round for "(dot)buychildporn". I personally think there is a human rights issue here in which ICANN is directly involved within the scope of its mission and operations.

What about a TLD application for (dot)legalizeslavery. ICANN is very directly involved in the award of TLDs. It signs contracts and determines when those contracts are renewed or revoked. Very difficult indeed to see how anyone could say that ICANN would not be obligated, by this definition of "respect" to review potential adverse human rights impact of a TLD application.

No advisory or policy recommending body in the ICANN Community currently has responsibility to review Human Rights impact in the applications for new TLDs. There is no mechanism for doing so and arguably the implications for free speech are quite broad if we start saying that certain proposed purposes for certain TLDs (as shown in the application relevant application) have adverse human rights impacts. Will we now place this responsibility on the GAC as a public policy matter? What if GNSO disagrees and prefers to uphold freedom of expression even if the expression is ugly and has an adverse impact on Human Rights?

So it appears we may not be able to deal with this within the community without establishing a Human Rights Objection process - but again what about the free speech aspects of this? Is a Human Rights Objection process in and of itself a content regulation provision?

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax 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@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 06, 2016 9:40 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Whilst I (think I) see where you are heading, Greg - and I tend to agree, although I’m not sure what ’seeking to prevent or mitigate’ exactly means in terms of exerting pressure on third parties - the ‘resurfacing those comments’ could be helpful as I am slightly lost here.

The way I read Ruggie’s definition of ‘respect’ is what is stated in principle #11:

'Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’

It’s the ’this means’ part.

(‘Part (b)’ in principle 13 refers to part of a ‘responsibility’ that follows, i.e. the requirement as described in this ‘part (b)’)

Simply put, following my interpretation of Ruggie’s ‘respect’ definition, ICANN should avoid infringing on the human rights of others. And it does not have to address adverse human rights impacts with which it is not involved.

Does that make sense? ;-)

-Bastiaan

...

On 06 Sep 2016, at 17:43, Greg Shatan <gregshatanipc@gmail.com> wrote:

Paul,

My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.

Greg

On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch> wrote: Good question

Jorge

Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Dienstag, 6. September 2016 17:35 An: 'Greg Shatan' <gregshatanipc@gmail.com>; 'Nigel Roberts' <nigel@channelisles.net> Cc: ws2-hr@icann.org Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 6, 2016 10:58 AM To: Nigel Roberts <nigel@channelisles.net> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org

<mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net

<mailto:lists@nielstenoever.net>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

Disclaimer: my views alone. Feel free to use, share, or discard as desired.

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I agree we need to get clarity i.e. explicitly have to determine what we are going to mean with ‘respect’ and what it consists of vis-a-vis ‘protection’ and/or ‘enforcement’. But at the same time, how fearful do we have to be? Isn’t the bylaw explicit enough? From 1.2(b)(viii): ’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. This Core Value does not obligate ICANN to enforce its human rights obligations, or the human rights obligations of other parties, against other parties.’ And from the mission: 'ICANN shall not regulate (i.e., impose rules and restrictions on) services that use the Internet’s unique identifiers or the content that such services carry or provide, outside the express scope of Section 1.1(a). For the avoidance of doubt, ICANN does not hold any governmentally authorized regulatory authority.’ (Etc)

On 06 Sep 2016, at 20:15, Dr. Tatiana Tropina <t.tropina@mpicc.de> wrote:

One of my points that I didn't manage to express clearly was that "protection" and "enforcement" include much broader range of issues than a content regulation. Of course, getting stuck with discussing content regulation only will lead us nowhere, indeed. In the general scheme of things, a good framework which will draw a clear line between respect and other two shall of course "save" us from all the enforcement and protection issues, including content regulation. I don't know if this is what you mean - that the debate shall be taken out from the rabbit hole to the level of making a clear distinction between respect, protection and enforcement, and this will solve the particular debates on content regulation or whatever enforcement? I can understand this approach actually. Best

Tanya

On 06/09/16 20:05, Greg Shatan wrote:

...

Tatiana,

I see your point. But I suggest that we would be better off using a less loaded example than "content regulation," because that will fog the issue we really want to deal with, which is what are "protection" and "enforcement" of human rights, versus what is "respect" for human rights.

Greg

On Tue, Sep 6, 2016 at 2:01 PM, Dr. Tatiana Tropina <t.tropina@mpicc.de> wrote: Greg,

I think the whole discussion on the "content regulation" (whether we define it or not here) reflects the concerns about "enforcement" and "protection".

While we can abandon the use of the term "content regulation" for the sake of avoiding the maze of rabbit holes, the enforcement and protection issues will be on the table anyway, and they will refer to the TLD issues as well. Fortunately, we have restrictions in the mission re content regulation and in the HR bylaw re enforcement and protection. I think that is enough to save ICANN from the content regulation (whatever it means!). But we have to figure out where is the silver line between "respect" and the no-go Human Rights watchdog actions. I think the expression "content regulation" is used here as it reflect the concerns that ICANN will step into this area of enforcement.

Best,

Tanya On 06/09/16 19:51, Greg Shatan wrote:

...

Anne, It would be helpful to go back to the current AGB and see how such domains would currently be treated. ICANN (including the GNSO PDP process) may already have dealt with that.

Tying this discussion to "content regulation" also gets us into other sticky wickets.

Is restricting the TLDs that can be applied for "content regulation"? I would submit that it's not.

Is restricting the TLDs that can be applied for a violation of the right to "free expression"? I'm skeptical about that as well, and even if it is, the right to free expression is neither boundless or immune to being balanced with other rights, including but not limited to human rights.

Is "content regulation" a loaded term in the ICANN context? It is now, based on the new bylaws. Just as ICANNnauts have used "policy" and "implementation" distinctions to to rule things in and out of scope, branding something as "content regulation" puts it in a box that at the least disfavors doing that thing, whatever it is. More succinctly, if "content regulation" is something that ICANN doesn't do, then people will take things that they don't want ICANN to do and call them "content regulation."

Do we have a common understanding of what "content regulation" means in the ICANN context, or even what "regulation" means in the ICANN context? Or even "content"? And the corollary, what isn't "content regulation"? I really doubt it.

Is it within the remit of this group to further define "content regulation"? I really don't think so.

We may be better off looking at creating a Framework of Interpretation (and that is our remit, broadly speaking) that does not require a definition and common understanding of "content regulation" in order to guide future reference to and implementation of the Bylaw.

If we follow the "content regulation" path, we are likely to end up not only down a rabbit hole, but in an entire network of rabbit holes.

Greg

On Tue, Sep 6, 2016 at 1:31 PM, Dr. Tatiana Tropina <t.tropina@mpicc.de> wrote: Dear Anne,

A very short response with my 2c - my first thought is that the issue of "(dot)buychildporn" and alike would be the issue of (applicable) criminal law rather than human rights issue.

Warm regards

Tanya

On 06/09/16 19:21, Aikman-Scalese, Anne wrote:

...

Regarding "address human rights impacts with which they are involved", I am quite stuck on the issue of "content regulation" when ICANN awards a TLD contract. For example, a registry operator applies in the next round for "(dot)buychildporn". I personally think there is a human rights issue here in which ICANN is directly involved within the scope of its mission and operations.

What about a TLD application for (dot)legalizeslavery. ICANN is very directly involved in the award of TLDs. It signs contracts and determines when those contracts are renewed or revoked. Very difficult indeed to see how anyone could say that ICANN would not be obligated, by this definition of "respect" to review potential adverse human rights impact of a TLD application.

No advisory or policy recommending body in the ICANN Community currently has responsibility to review Human Rights impact in the applications for new TLDs. There is no mechanism for doing so and arguably the implications for free speech are quite broad if we start saying that certain proposed purposes for certain TLDs (as shown in the application relevant application) have adverse human rights impacts. Will we now place this responsibility on the GAC as a public policy matter? What if GNSO disagrees and prefers to uphold freedom of expression even if the expression is ugly and has an adverse impact on Human Rights?

So it appears we may not be able to deal with this within the community without establishing a Human Rights Objection process - but again what about the free speech aspects of this? Is a Human Rights Objection process in and of itself a content regulation provision?

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax 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@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 06, 2016 9:40 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Whilst I (think I) see where you are heading, Greg - and I tend to agree, although I’m not sure what ’seeking to prevent or mitigate’ exactly means in terms of exerting pressure on third parties - the ‘resurfacing those comments’ could be helpful as I am slightly lost here.

The way I read Ruggie’s definition of ‘respect’ is what is stated in principle #11:

'Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’

It’s the ’this means’ part.

(‘Part (b)’ in principle 13 refers to part of a ‘responsibility’ that follows, i.e. the requirement as described in this ‘part (b)’)

Simply put, following my interpretation of Ruggie’s ‘respect’ definition, ICANN should avoid infringing on the human rights of others. And it does not have to address adverse human rights impacts with which it is not involved.

Does that make sense? ;-)

-Bastiaan

...

On 06 Sep 2016, at 17:43, Greg Shatan <gregshatanipc@gmail.com> wrote:

Paul,

My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.

Greg

On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch> wrote: Good question

Jorge

Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Dienstag, 6. September 2016 17:35 An: 'Greg Shatan' <gregshatanipc@gmail.com>; 'Nigel Roberts' <nigel@channelisles.net> Cc: ws2-hr@icann.org Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 6, 2016 10:58 AM To: Nigel Roberts <nigel@channelisles.net> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org

<mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net

<mailto:lists@nielstenoever.net>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

Disclaimer: my views alone. Feel free to use, share, or discard as desired.

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Hi Anne, I think for the examples you are talking about, ICANN does have processes in place.ICANN vets the registry operators and does a background check. There is also a policy on "New gTLD Program Safeguards to Mitigate DNS Abuse". And probably more measures with regards to criminal acts. In New gTLD program applicant book also there was a GAC early warning if a new gTLD was problematic for example. Best Farzaneh On 6 September 2016 at 19:21, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:

Regarding "address human rights impacts with which they are involved", I am quite stuck on the issue of "content regulation" when ICANN awards a TLD contract. For example, a registry operator applies in the next round for "(dot)buychildporn". I personally think there is a human rights issue here in which ICANN is directly involved within the scope of its mission and operations.

What about a TLD application for (dot)legalizeslavery. ICANN is very directly involved in the award of TLDs. It signs contracts and determines when those contracts are renewed or revoked. Very difficult indeed to see how anyone could say that ICANN would not be obligated, by this definition of "respect" to review potential adverse human rights impact of a TLD application.

No advisory or policy recommending body in the ICANN Community currently has responsibility to review Human Rights impact in the applications for new TLDs. There is no mechanism for doing so and arguably the implications for free speech are quite broad if we start saying that certain proposed purposes for certain TLDs (as shown in the application relevant application) have adverse human rights impacts. Will we now place this responsibility on the GAC as a public policy matter? What if GNSO disagrees and prefers to uphold freedom of expression even if the expression is ugly and has an adverse impact on Human Rights?

So it appears we may not be able to deal with this within the community without establishing a Human Rights Objection process - but again what about the free speech aspects of this? Is a Human Rights Objection process in and of itself a content regulation provision?

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax 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@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 06, 2016 9:40 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Whilst I (think I) see where you are heading, Greg - and I tend to agree, although I’m not sure what ’seeking to prevent or mitigate’ exactly means in terms of exerting pressure on third parties - the ‘resurfacing those comments’ could be helpful as I am slightly lost here.

The way I read Ruggie’s definition of ‘respect’ is what is stated in principle #11:

'Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’

It’s the ’this means’ part.

(‘Part (b)’ in principle 13 refers to part of a ‘responsibility’ that follows, i.e. the requirement as described in this ‘part (b)’)

Simply put, following my interpretation of Ruggie’s ‘respect’ definition, ICANN should avoid infringing on the human rights of others. And it does not have to address adverse human rights impacts with which it is not involved.

Does that make sense? ;-)

-Bastiaan

...

On 06 Sep 2016, at 17:43, Greg Shatan <gregshatanipc@gmail.com> wrote:

Paul,

My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.

Greg

On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch> wrote: Good question

Jorge

Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Dienstag, 6. September 2016 17:35 An: 'Greg Shatan' <gregshatanipc@gmail.com>; 'Nigel Roberts' <nigel@channelisles.net> Cc: ws2-hr@icann.org Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

Paul Rosenzweig

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 6, 2016 10:58 AM To: Nigel Roberts <nigel@channelisles.net> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org

<mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net

<mailto:lists@nielstenoever.net>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

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-- Farzaneh

I'm not sure we can divorce 11 from 13 in considering what "respect" means. In particular 13(b) states a requirement that expands on the meaning of "adverse human rights impacts with which they are involved": "Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts." If we are going to adopt a definition of "adverse human rights impacts with which [ICANN is] involved" that is narrower than or different from 13(b) (and I believe we may need to do so), we will need to be clear about it, if we continue to use the word "respect." As for what "seeking to prevent or mitigate" means -- we'll need to be quite clear about what it means in order to do our work. We can look to ways that this principle has been interpreted, even within the Ruggie Principles. It's interesting that (Operating) Principle 19 makes a clear use of the word "leverage" in terms of a company's ability to stop or minimize third party human rights concerns.... Greg On Tue, Sep 6, 2016 at 12:39 PM, Bastiaan Goslings < bastiaan.goslings@ams-ix.net> wrote:

Whilst I (think I) see where you are heading, Greg - and I tend to agree, although I’m not sure what ’seeking to prevent or mitigate’ exactly means in terms of exerting pressure on third parties - the ‘resurfacing those comments’ could be helpful as I am slightly lost here.

The way I read Ruggie’s definition of ‘respect’ is what is stated in principle #11:

'Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.’

It’s the ’this means’ part.

(‘Part (b)’ in principle 13 refers to part of a ‘responsibility’ that follows, i.e. the requirement as described in this ‘part (b)’)

Simply put, following my interpretation of Ruggie’s ‘respect’ definition, ICANN should avoid infringing on the human rights of others. And it does not have to address adverse human rights impacts with which it is not involved.

Does that make sense? ;-)

-Bastiaan

...

On 06 Sep 2016, at 17:43, Greg Shatan <gregshatanipc@gmail.com> wrote:

Paul,

My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.

Greg

On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch> wrote: Good question

Jorge

Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul Rosenzweig Gesendet: Dienstag, 6. September 2016 17:35 An: 'Greg Shatan' <gregshatanipc@gmail.com>; 'Nigel Roberts' < nigel@channelisles.net> Cc: ws2-hr@icann.org Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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www.redbranchconsulting.com

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 6, 2016 10:58 AM To: Nigel Roberts <nigel@channelisles.net> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org

<mailto:jcurran@istaff.org>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net

<mailto:lists@nielstenoever.net>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

Disclaimer: my views alone. Feel free to use, share, or discard as desired.

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Agree with Greg, this discussion is related to the document on what was agreed in the Ws1 (it was recently finalised by the team of volunteers and everyone can access it). We had quite a heated debate in the WP4, and there was a general agreement that we can't adopt a definition of "respect" from Ruggie - partially this is why the bylaw is dormant and we need a framework of interpretation. The part (b) of the Ruggie definition raised serious concerns about protection and enforcement. I hope Paul Twomey can later intervene this discussion and repeat his concerns again, but we might have a look at the transcripts from WS1, I remember that on one of the calls he made a clear statement about Ruggie. The comments in the Google documents on WS1 and FoI refer to this debate. At the same time, I express my support to the idea that we are better to follow the same language we used before (and that is in the CCWG report and the bylaw), meaning that we use the words "respect", "protect" and "enforce" in order to avoid confusions. However, answering the question of what respect, protect and enforce mean for ICANN is exactly one of the tasks of this group. Warm regards Tatiana On 06/09/16 17:43, Greg Shatan wrote:

Paul,

My prior email in this thread touches on why we would not want to adopt (at least not in full) part (b) of the Ruggie Principles' definition of "respect". Paul Twomey has also commented on this issue at length during WS1; if we could resurface those comments it would be very helpful. The commentary around the draft documents in Google Docs also touches on this issue.

Greg

On Tue, Sep 6, 2016 at 11:36 AM, <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> wrote:

Good question

Jorge

*Von:*ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org>] *Im Auftrag von *Paul Rosenzweig *Gesendet:* Dienstag, 6. September 2016 17:35 *An:* 'Greg Shatan' <gregshatanipc@gmail.com <mailto:gregshatanipc@gmail.com>>; 'Nigel Roberts' <nigel@channelisles.net <mailto:nigel@channelisles.net>> *Cc:* ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Betreff:* Re: [Ws2-hr] When should ICANN uphold human rights?

Can someone better versed in this articulate for me why we would NOT want to use the Ruggie definition. I agree that the CCWG did not intend us to necessarily adopt that definition; but they also did not necessarily intend to exclude it. For the reasons Greg has articulated, it seems to me that it would be wise to follow accepted practice UNLESS there is a good reason not to. Hence my question: Is there something wrong with the way “respect” is used by the Ruggie principles that I am missing?

P

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>

M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>

VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>

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My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/> __

*From:*ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Tuesday, September 6, 2016 10:58 AM *To:* Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> *Cc:* ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?

I have a good deal of sympathy with Nigel's position. But that leaves us with a significant issue:

1. The Bylaw uses the verb "respect."

2. "Respect" has (at least arguably) a settled meaning in the field of corporations and human rights, from the Ruggie Principles.

3. It was not the intention of the CCWG to adopt the Ruggie Principles' definition of "respect."

4. It's up to this group, initially, to consider what we mean by "respect" in the context of ICANN and human rights (and our recommendations will then go back to the CCWG and out for public comment, etc.).

5. If we do not recommend that the Ruggie Principles' definition of "respect" be adopted in its entirety, we will either:

a. End up with a definition of "respect" that varies from the Ruggie Principles, or

b. Need to recommend an amendment of the Bylaws to change the word "respect" to a word or phrase that is not a "term of art" in the application of human rights, and we will need to recommend an appropriate word or phrase for that purpose.

6. Picking up on Nigel's last point, we will need to understand and explain "respect/protect/enforce" and explain that our recommendation for what ICANN should do does not fall into any of those three defined terms as they are used in the Ruggie Principles. Frankly, we need to do this sooner rather than later, as it is really an essential part of our task, and this discussion highlights how careful we need to be in choosing certain words in our discussion as well as our recommendations.

Greg

On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> wrote:

Actually, I will strongly caution against using terms-of-art with divergent or 'roll-your-own' definitions.

It may be tempting for ICANN to create our own variant definiton of terms like 'respect for', but this is likely to cause confusion, and even potential conflict with government actors (among others) to whom human rights law, and principles directly apply.

I submit what we need to do is understand fully and explain the meaning of such terms-of-art and put them in the context of ICANN's voluntary adoption of a common, albeit basic, commitment to fundamental rights standard.

Re-definition, is not the way forward, I suggest.

On 06/09/16 03:12, Greg Shatan wrote:

A few quick comments on the thread above.

It is important that we be precise with our verbs. The Ruggie Principles use three verbs, each with different meanings and with application to different actors: "respect," "protect" and "enforce." I'm not suggesting we should adopt the Ruggie Principles' meanings for all of these words, but they could be useful as a starting point. As a matter of fact, I don't think we can or should adopt the Ruggie Principles' definition of "respect" in the ICANN context. But we should be careful about how we use these words, and how we use other verbs.

As was already noted, "uphold" is a whole new verb, with no standard meaning in the human rights context that I'm aware of. "Enforce" was also used in this thread, but in a very different context than in the Ruggie Principles, where "enforcement" applies only to the activities of states. We need to determine what we mean by each verb we use, and especially by "respect" since it appears in the Bylaw.

I believe that Niels quoted from the Ruggie Principles definition of respect earlier in this thread when he referred to the draft FoI document. I believe Paul Twomey in particular has pointed out the significant issues that could arise if ICANN were to adopt part (b) of this definition:

(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

As I understand this, it requires a party to exert pressure, through business relationships, on third parties. I don't think it's at all settled that ICANN's relationships with applicants, registries and registrars are "business relationships," even where these parties have contracts with ICANN. But if some or all of these are "business relationships," this could easily be read to require ICANN to impose restrictions on registries and registrars, and on applicants, that would be extremely broad-ranging and may we be antithetical to ICANN's mission.

I generally agree with John Curran regarding application concerns in the implementation phase. Once the ICANN policy process has resulted in recommendations which are adopted, the primary focus in implementation needs to be faithfully carrying out the policy recommendations. It's fair to assume that human rights have been taken into account in the policy development process, along with and balanced against other rights and concerns, and that what results from the multistakeholder process should be given effect in implementation.

Greg

On Mon, Sep 5, 2016 at 9:11 PM, John Curran <jcurran@istaff.org <mailto:jcurran@istaff.org>

<mailto:jcurran@istaff.org <mailto:jcurran@istaff.org>>> wrote:

On Sep 5, 2016, at 6:38 PM, Niels ten Oever <lists@nielstenoever.net <mailto:lists@nielstenoever.net>

<mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>>> wrote:

... b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.

Interesting predicament. If one imagines the potential for an update to one of the IANA registries that in turn poses an impact to human rights – i.e. following the specific guidance from the appropriate community that is contracting with ICANN/PTI for IANA services would result in an HR impact, then the above proposed responsibility (to prevent or mitigate...) would suggest that ICANN should to do otherwise.

Note that the event of ICANN/PTI acting contrary to the clear direction of one of the respective communities (names, numbers, protocols) with regard to IANA registry updates could easily precipitate a crisis that results in the end of ICANN, and thus should probably be avoided...

ICANN (including PTI) needs to place the highest priority upon fidelity to the outcomes of the multi-stakeholder process, since its existence is predicated (particularly in a post-NTIA contract environment) upon the presupposition of the validity of that process. This is also the reason why I noted that there is a significant difference between application of HR principles within the multi- stakeholder policy development process when compared to later on during the policy implementation phases.

/John

Disclaimer: my views alone. Feel free to use, share, or discard as desired.

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Hi Leon Yes you are right. The term that was used was respect which we also have to define its meaning (it's one of the questions raised in Google doc.) But I think we can focus on reformulated questions provided by Paul and substantiated by John. The questions I raised can be answered throughout our discussion but I think at some point we really need to discuss the issues we are considering within various settings at ICANN. We could also have an ICANN function chart and then consider the applicability of internationally recognised human rights for each function. Just a suggestion. I might be wrong. Best Farzaneh On 5 Sep 2016 9:02 p.m., "León Felipe Sánchez Ambía" <leonfelipe@sanchez.mx> wrote:

Dear all,

I am glad to see the discussion is vibrant in this subgroup.

I have, however one point of clarification. I accept that my concern might be a consequence of my lack of knowledge in english but I feel that when we say “uphold” we are going a step further than the intended spirit of “respecting” human rights as concluded in our WS1 report.

If that is in fact the case, I would encourage the subgroup to go back to the root of the discussion considering ICANN to respect rather than upholding human rights.

I am happy to read comments and grateful for any corrections to any lack of knowledge I might be displaying.

Best regards,

León

El 05/09/2016, a las 4:01 a.m., Arasteh <kavouss.arasteh@gmail.com> escribió:

Dear Mrs. Badii Thank you very much for clarifications Yes unfortunately I thought you were intervening as co-chair of accountability group for which I regret but your reaction was unfair, instead you should have clarified the matter immediately and those who gas always been against me used this opportunity and categorised my comment "Silly" Now the matter is clear and issue is closed Regards Arasteh

Sent from my iPhone

On 5 Sep 2016, at 10:53, farzaneh badii <farzaneh.badii@gmail.com> wrote:

I think there is a confusion that needs to be addressed here and hopefully it won't need clarification anymore.

The SO/AC accountability sub-group is being mentioned here because Kavouss is confusing this group with SO/AC accountability subgroup. This confusion comes from the fact that I am one of the co-rapporteurs for that sub-group. That is a separate sub-group which focusses on SO/AC accountability.

I am merely a participant in human rights sub-group. Which is this group! I sent the questions to this group because during the last week session I volunteered to send questions.

Best

Farzaneh

On 5 Sep 2016 8:31 a.m., "Arasteh" <kavouss.arasteh@gmail.com> wrote:

...

Dear Mr. Niels ten Oever Thank you very much for yr reactions I hope you have kindly recognized that: A) this issue can only be discussed at SubGroup established for FOI for Human Rights AND NOT IN THE SUBGROUP ON SO/AC ACCOUNTABILITY B) thank you for the list of the reference documents that you have made but please kindly study the complete list discussed at Human Rights Group chaired Mr, Leon Sanchez You would not a complete list there. If you , as the One of the Co-Chair of the Group proposed a selected list , I have no problem with that but 1) this issue must be discussed at your group and not accountability Group and 2) we MUST avoid repeating discussions that we have had. Under Mr. Sanchez Group during four or five months Tks Arasteh Sent from my iPhone

...

On 5 Sep 2016, at 05:58, Niels ten Oever <lists@nielstenoever.net> wrote:

Dear all,

Great to see the discussion developing here. If I look at the questions brought up by Farzane, structured by Paul (and confirmed by Tijani), I see some overlap with the questions that were brought up in the draft FoI we've been working on as Google Doc.

...

...

* What substance we see in the phrase human rights inside ICANN Mission?

For this question we had a preliminary answer, namely that we could understand the following documents as 'Internationally recognized human rights':

UDHR: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng ICCPR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx CEDAW: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx CRPD: http://www.un.org/disabilities/convention/conventionfull.shtml DRIPS: http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx

This could help narrow down that part of the discussion.

When we look at the second question and clarification by John:

...

...

* When, if ever, ICANN should give that substance (whatever it may be) effect?

This might mean different things for:

- the ICANN community (SOs and ACs) - ICANN the organization - Contracted parties - policy development process

It might helps us to differentiate or list what the different relevant activities of these (or other) parts of the ICANN ecosystem and understand what (potential) human rights impacts they might have?

Just a suggestions.

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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Dear Kavouss, On 09/05/2016 06:30 PM, Arasteh wrote:

Dear Mr. Niels ten Oever Thank you very much for yr reactions I hope you have kindly recognized that: A) this issue can only be discussed at SubGroup established for FOI for Human Rights AND NOT IN THE SUBGROUP ON SO/AC ACCOUNTABILITY

This is the FoI subgroup. B) thank you for the list of the

reference documents that you have made but please kindly study the complete list discussed at Human Rights Group chaired Mr, Leon Sanchez You would not a complete list there. If you , as the One of the Co-Chair of the Group proposed a selected list , I have no problem with that but 1) this issue must be discussed at your group and not accountability Group and 2) we MUST avoid repeating discussions that we have had. Under Mr. Sanchez Group during four or five months

We did not have an exhaustive list developed during WS1. This is exacty the work at hand, so it would be great if you could comment on the list, or add information if we might have missed it. Best, Niels Tks Arasteh Sent from my iPhone

...

On 5 Sep 2016, at 05:58, Niels ten Oever <lists@nielstenoever.net> wrote:

Dear all,

Great to see the discussion developing here. If I look at the questions brought up by Farzane, structured by Paul (and confirmed by Tijani), I see some overlap with the questions that were brought up in the draft FoI we've been working on as Google Doc.

...

...

* What substance we see in the phrase human rights inside ICANN Mission?

For this question we had a preliminary answer, namely that we could understand the following documents as 'Internationally recognized human rights':

UDHR: http://www.ohchr.org/EN/UDHR/Pages/Language.aspx?LangID=eng ICCPR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx CEDAW: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CEDAW.aspx CRPD: http://www.un.org/disabilities/convention/conventionfull.shtml DRIPS: http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx

This could help narrow down that part of the discussion.

When we look at the second question and clarification by John:

...

...

* When, if ever, ICANN should give that substance (whatever it may be) effect?

This might mean different things for:

- the ICANN community (SOs and ACs) - ICANN the organization - Contracted parties - policy development process

It might helps us to differentiate or list what the different relevant activities of these (or other) parts of the ICANN ecosystem and understand what (potential) human rights impacts they might have?

Just a suggestions.

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@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

I accept Tijani’s amendment. My use of “only” was overstated – there will be many subsidiary and subsequent questions. I think, however, that this list identifies the basic two-part outline of the inquiry and that Farzaneh’s questions both are important subsidiary questions to the general question B) about “when.” As for Kavous’s suggestion that in discussion these the group is seeking to “modify the Bylaws” which is outside its Terms of Reference that’s just silly. This is a WG to talk about implementation of the new bylaw. I imagine, however, that if the group thinks a bylaw modification is necessary (unlikely, but plausible, I suppose) it can make that suggestion and then the CCWG can agree or not, and propose to the Board who can, likewise, agree or not and seek the agreement of the EC, or not. It’s a standard tactic to try to limit discussion by saying something is out of bounds – especially at the outset. Another such tactic is to say that a question is not understood – when, of course, it is readily understandabe. For example, in response to Farzaneh’s original questions I would support giving consideration to HR generally in the formulation of contracts with registrars and registries (IF we agree on what those HR are) but I would be reluctant to have ICANN force enforcement. I say this not to discuss the specifics, but simply to make clear that Farzaneh’s questions are perfectly understandable and clearly formulated. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: Tijani BEN JEMAA [mailto:tijani.benjemaa@topnet.tn] Sent: Sunday, September 4, 2016 2:13 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Cc: farzaneh badii <farzaneh.badii@gmail.com>; Kavouss Arasteh <kavouss.arasteh@gmail.com>; ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Dear all, I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be: * What substance we see in the phrase human rights inside ICANN Mission? * When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases. The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > a écrit : Dear Farzaneh Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect? Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary. Paul Paul Rosenzweig <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 <http://www.redbranchconsulting.com/> www.redbranchconsulting.com My PGP Key: <http://redbranchconsulting.com/who-we-are/public-pgp-key/> http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com> > Cc: ws2-hr@icann.org <mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh < <mailto:kavouss.arasteh@gmail.com> kavouss.arasteh@gmail.com> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss 2016-09-04 14:25 GMT+02:00 farzaneh badii < <mailto:farzaneh.badii@gmail.com> farzaneh.badii@gmail.com>: Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? Best -- Farzaneh _______________________________________________ Ws2-hr mailing list <mailto:Ws2-hr@icann.org> Ws2-hr@icann.org <https://mm.icann.org/mailman/listinfo/ws2-hr> https://mm.icann.org/mailman/listinfo/ws2-hr -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights). I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to, 1. Award of registry contracts 2. Contractual provisions required in registry (and by implication registrar) contracts. 3. Adjudication of Requests for Reconsideration 4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments 5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes. Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process. As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2. The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved. I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?) Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D2082E.7B20F140] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Sunday, September 04, 2016 11:13 AM To: Paul Rosenzweig Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Dear all, I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be: * What substance we see in the phrase human rights inside ICANN Mission? * When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases. The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114 +216 52 385 114 ----------------------------------------------------------------------------- Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Dear Farzaneh Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect? Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>>: Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? Best -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@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.

I agree with Greg, the framework shall explain what the wording of bylaw means (respect, protect, enforce, etc.); we can't create the whole human rights policy and procedural mechanisms for addressing the issues of dealing with DNS abuse vs. human rights, etc. in this group. However, this framework shall be as clear as possible in order not to open the door for claims that ICANN shall protect human rights (I sound like a broken record here, but still I think it's of utmost importance) and shall not lead to expanding ICANN's mission to protecting/enforcing any HR - including, er, content regulation :). Best, Tanya On 06/09/16 20:12, Greg Shatan wrote:

Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here.

We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them.

We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one.

Greg

On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> wrote:

Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights).

I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to,

1. Award of registry contracts

2. Contractual provisions required in registry (and by implication registrar) contracts.

3. Adjudication of Requests for Reconsideration

4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments

5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes.

Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process.

As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2.

The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved.

I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?)

Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights.

Anne

*Anne E. Aikman-Scalese*

Of Counsel

520.629.4428 <tel:520.629.4428> office

520.879.4725 <tel:520.879.4725> fax

AAikman@lrrc.com <mailto:AAikman@lrrc.com>

_____________________________

Lewis Roca Rothgerber Christie LLP

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lrrc.com <http://lrrc.com/>

*From:*ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org>] *On Behalf Of *Tijani BEN JEMAA *Sent:* Sunday, September 04, 2016 11:13 AM *To:* Paul Rosenzweig

*Cc:* ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?

Dear all,

I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be:

* What substance we see in the phrase human rights inside ICANN Mission? * When, if ever, ICANN should give that substance (whatever it may be) effect?

I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases.

The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars

-----------------------------------------------------------------------------

*Tijani BEN JEMAA*

Executive Director

Mediterranean Federation of Internet Associations (*FMAI*)

Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114>

+216 52 385 114 <tel:%2B216%2052%20385%20114>

-----------------------------------------------------------------------------

Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit :

Dear Farzaneh

Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect?

Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary.

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>

M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>

VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>

www.redbranchconsulting.com <http://www.redbranchconsulting.com/>

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ <http://redbranchconsulting.com/who-we-are/public-pgp-key/>

*From:* ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org <mailto:ws2-hr-bounces@icann.org>] *On Behalf Of *farzaneh badii *Sent:* Sunday, September 4, 2016 11:56 AM *To:* Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> *Cc:* ws2-hr@icann.org <mailto:ws2-hr@icann.org> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?

Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can.

The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights.

Best

Farzaneh

On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com <mailto:kavouss.arasteh@gmail.com>> wrote:

Dear All,

I do not understand the meaning and purpose of these questions.

Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text.

We can not send out these questions at all

Reagrds

Kavouss

2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>>:

Hi all,

Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss:

Considering ICANN's scope and mission, when should ICANN uphold human rights?

- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application)

- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?

Best

--

Farzaneh

_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr <https://mm.icann.org/mailman/listinfo/ws2-hr>

--

Farzaneh

_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr <https://mm.icann.org/mailman/listinfo/ws2-hr>

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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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This likely depends on the answer to the questions that have been formulated to be directed to ICANN legal as to the meaning of "applicable law" and the International principles. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image004.png@01D20833.689E12F0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Dr. Tatiana Tropina Sent: Tuesday, September 06, 2016 11:27 AM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? I agree with Greg, the framework shall explain what the wording of bylaw means (respect, protect, enforce, etc.); we can't create the whole human rights policy and procedural mechanisms for addressing the issues of dealing with DNS abuse vs. human rights, etc. in this group. However, this framework shall be as clear as possible in order not to open the door for claims that ICANN shall protect human rights (I sound like a broken record here, but still I think it's of utmost importance) and shall not lead to expanding ICANN's mission to protecting/enforcing any HR - including, er, content regulation :). Best, Tanya On 06/09/16 20:12, Greg Shatan wrote: Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here. We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them. We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one. Greg On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a "need to know" threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won't be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP - that is the privacy right and the rights of authors (i.e. intellectual property rights). I don't think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN's new gTLD activities, including, but not limited to, 1. Award of registry contracts 2. Contractual provisions required in registry (and by implication registrar) contracts. 3. Adjudication of Requests for Reconsideration 4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments 5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes. Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN's operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process. As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2. The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to "respect human rights" in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved. I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author's rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?) Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN's activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428<tel:520.629.4428> office 520.879.4725<tel:520.879.4725> fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D20833.6875CA70] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] On Behalf Of Tijani BEN JEMAA Sent: Sunday, September 04, 2016 11:13 AM To: Paul Rosenzweig Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Dear all, I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be: * What substance we see in the phrase human rights inside ICANN Mission? * When, if ever, ICANN should give that substance (whatever it may be) effect? I can't say they are the only meaningful questions since there will be subsequent questions. But let's start with the first question: I think that to address it, we may begin by giving practical easy cases. The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114<tel:%2B216%2098%20330%20114> +216 52 385 114<tel:%2B216%2052%20385%20114> ----------------------------------------------------------------------------- Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Dear Farzaneh Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect? Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you're asking questions that have real meaning - whatever anyone may say to the contrary. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>>: Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? Best -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@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. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr@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. 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A great series of comments, thanks to all who contributed. Three quick thoughts, trying hard not to repeat too much of what’s already been said. 1. Not sure how much power we have to do any enforcing or protecting within ICANN’s mandate, whether or not this is desirable. Just seems way outside the skill set/normal workings of this community. With this in mind, we need to ask “is it desirable” but also “can we do it”. 2. I think it may be quite difficult to fully understand the HR implications of a new gTLD unless it is obvious (as with the examples mentioned about slavery/child porn). I wonder if it will be this clear in all cases, and if this might change over time (I.e. With the way people would use/market the string). 3. Isn’t there at some level a “public interest” component in all this? I wonder how this conversation might take public interest responsibilities into account. Thanks, Andrew ___________________ Andrew Mack Principal C: +1 (202) 256-1077 O: +1 (202) 642-6429 Skype: Andrew.Mack [cid:09937041-D495-4166-8629-979B3492BAB4] AMGlobal Consulting 2001 Massachusetts Avenue, NW First Floor Washington, DC 20036 USA www.amglobal.com<http://www.amglobal.com/> | amack@amglobal.com From: <ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>> on behalf of "Dr. Tatiana Tropina" <t.tropina@mpicc.de<mailto:t.tropina@mpicc.de>> Date: Tuesday, September 6, 2016 at 2:27 PM To: "ws2-hr@icann.org<mailto:ws2-hr@icann.org>" <ws2-hr@icann.org<mailto:ws2-hr@icann.org>> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? I agree with Greg, the framework shall explain what the wording of bylaw means (respect, protect, enforce, etc.); we can't create the whole human rights policy and procedural mechanisms for addressing the issues of dealing with DNS abuse vs. human rights, etc. in this group. However, this framework shall be as clear as possible in order not to open the door for claims that ICANN shall protect human rights (I sound like a broken record here, but still I think it's of utmost importance) and shall not lead to expanding ICANN's mission to protecting/enforcing any HR - including, er, content regulation :). Best, Tanya On 06/09/16 20:12, Greg Shatan wrote: Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here. We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them. We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one. Greg On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights). I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to, 1. Award of registry contracts 2. Contractual provisions required in registry (and by implication registrar) contracts. 3. Adjudication of Requests for Reconsideration 4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments 5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes. Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process. As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2. The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved. I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?) Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428<tel:520.629.4428> office 520.879.4725<tel:520.879.4725> fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:part5.390C8762.6F0DEAF3@mpicc.de] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] On Behalf Of Tijani BEN JEMAA Sent: Sunday, September 04, 2016 11:13 AM To: Paul Rosenzweig Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Dear all, I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be: * What substance we see in the phrase human rights inside ICANN Mission? * When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases. The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114<tel:%2B216%2098%20330%20114> +216 52 385 114<tel:%2B216%2052%20385%20114> ----------------------------------------------------------------------------- Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Dear Farzaneh Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect? Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>>: Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? Best -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@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. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org>https://mm.icann.org/mailman/listinfo/ws2-hr

I would take a broader view than the one Greg has just suggested. Nowhere in the Bylaw and the conditions upon which it would become effective does it say that the WS2 team’s activities should be restricted to footnoting the Bylaw or prohibited from making recommendations on human rights-related policies. In fact, our mandate is to develop and recommend a “framework of interpretation for human rights”. This is much broader than providing “a framework of interpretation for the Bylaw”. We will not be doing our job unless we consider what human rights are impacted by ICANN and its relationships with third parties and then develop recommendations as to the scope of ICANN’s obligations under the Bylaw to respect those human rights in engaging in those relationships. Dan Daniel Appelman Partner Montgomery & Hansen, LLP 525 Middlefield Road, Suite 250 Menlo Park, CA 94025 650.331.7014 (direct) 650-245-8361 (mobile) 650.331.7000 (main) 650.331.7001 (fax) www.mh-llp.com<http://www.mh-llp.com/> [New Logo - email ver] This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, and destroy all copies of the original message. To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 06, 2016 11:13 AM To: Aikman-Scalese, Anne Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here. We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them. We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one. Greg On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights). I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to, 1. Award of registry contracts 2. Contractual provisions required in registry (and by implication registrar) contracts. 3. Adjudication of Requests for Reconsideration 4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments 5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes. Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process. As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2. The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved. I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?) Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428<tel:520.629.4428> office 520.879.4725<tel:520.879.4725> fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D20832.238BD7C0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] On Behalf Of Tijani BEN JEMAA Sent: Sunday, September 04, 2016 11:13 AM To: Paul Rosenzweig Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Dear all, I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be: * What substance we see in the phrase human rights inside ICANN Mission? * When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases. The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114<tel:%2B216%2098%20330%20114> +216 52 385 114<tel:%2B216%2052%20385%20114> ----------------------------------------------------------------------------- Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Dear Farzaneh Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect? Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>>: Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? Best -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr -- Farzaneh _______________________________________________ Ws2-hr mailing list Ws2-hr@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. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

I am closer to Daniel Appelman's understanding than to Tatiana's right about now. :) rd On Sep 6, 2016 5:39 PM, "Dr. Tatiana Tropina" <t.tropina@mpicc.de> wrote:

Dear Daniel,

I would rather disagree with broadening the view that much.

First of all, there are other documents from CCWG than define the tasks of this group, than only the bylaw text. In particular, Annex 06 (p. 2) of the CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations report, that was approved, says:

"Include the following in Work Stream 2 activities: - Develop an *FOI-HR for the Human Rights Bylaw*" (underlined by me).

The drafters of the CCWG report could have been of course more specific and put the wording "FoI for the HR Bylaw" everywhere, but I think it actually never dawned on them that there will be a discussion on broadening the scope of the FoI that much. At least the wording of the Annex 6 (and Annex 12 about WS2) indicates that it's a FoI for bylaw and not for the whole human rights impact assessment (HRIA) within ICANN.

Secondly, even a mere interpretation of the bylaw will require a lot of analysis of what you refer to, but extending the work of this group to the whole HRIA is outside of our mandate I think. There was a report of the Cross-community working party for human rights (which is not the part of the work of this CCWG) prepared for the ICANN meeting in Dublin that actually showed that the full HRIA, though might be a desirable option, is a time- and resources-consuming process and might be recommended only in a long-term. We can of course consider recommending ICANN to carry out a HRIA as a part of the FoI, why not, but doing the whole assessment on our own, in this group, rather looks like an impossible task - both in terms of resources and mandate.

I think the work of this group should definitely focus on the bylaw interpretation at the moment, because we do have to agree on what the bylaw means first before we will make any further recommendations.

warm regards Tatiana

On 06/09/16 20:36, Daniel Appelman wrote:

I would take a broader view than the one Greg has just suggested. Nowhere in the Bylaw and the conditions upon which it would become effective does it say that the WS2 team’s activities should be restricted to footnoting the Bylaw or prohibited from making recommendations on human rights-related policies. In fact, our mandate is to develop and recommend a “framework of interpretation for human rights”. This is much broader than providing “a framework of interpretation for the Bylaw”. We will not be doing our job unless we consider what human rights are impacted by ICANN and its relationships with third parties and then develop recommendations as to the scope of ICANN’s obligations under the Bylaw to respect those human rights in engaging in those relationships.

Dan

*Daniel Appelman*

Partner

*Montgomery & Hansen, LLP*

525 Middlefield Road, Suite 250

Menlo Park, CA 94025

*650.331.7014 <650.331.7014> (direct)*

650-245-8361 (mobile)

650.331.7000 (main)

650.331.7001 (fax)

*www.mh-llp.com* <http://www.mh-llp.com/>

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This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, and destroy all copies of the original message. To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein.

*From:* ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org <ws2-hr-bounces@icann.org>] *On Behalf Of *Greg Shatan *Sent:* Tuesday, September 06, 2016 11:13 AM *To:* Aikman-Scalese, Anne *Cc:* ws2-hr@icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?

Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here.

We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them.

We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one.

Greg

On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:

Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights).

I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to,

1. Award of registry contracts

2. Contractual provisions required in registry (and by implication registrar) contracts.

3. Adjudication of Requests for Reconsideration

4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments

5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes.

Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process.

As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2.

The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved.

I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?)

Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights.

Anne

*Anne E. Aikman-Scalese*

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman@lrrc.com

_____________________________

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com

*From:* ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] *On Behalf Of *Tijani BEN JEMAA *Sent:* Sunday, September 04, 2016 11:13 AM *To:* Paul Rosenzweig

*Cc:* ws2-hr@icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?

Dear all,

I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be:

- What substance we see in the phrase human rights inside ICANN Mission? - When, if ever, ICANN should give that substance (whatever it may be) effect?

I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases.

The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars

------------------------------------------------------------ -----------------

*Tijani BEN JEMAA*

Executive Director

Mediterranean Federation of Internet Associations (*FMAI*)

Phone: +216 98 330 114 <%2B216%2098%20330%20114>

+216 52 385 114 <%2B216%2052%20385%20114>

------------------------------------------------------------ -----------------

Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@ redbranchconsulting.com> a écrit :

Dear Farzaneh

Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect?

Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary.

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

*From:* ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org <ws2-hr-bounces@icann.org>] *On Behalf Of *farzaneh badii *Sent:* Sunday, September 4, 2016 11:56 AM *To:* Kavouss Arasteh <kavouss.arasteh@gmail.com> *Cc:* ws2-hr@icann.org *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?

Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can.

The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights.

Best

Farzaneh

On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All,

I do not understand the meaning and purpose of these questions.

Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text.

We can not send out these questions at all

Reagrds

Kavouss

2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com>:

Hi all,

Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss:

Considering ICANN's scope and mission, when should ICANN uphold human rights?

- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application)

- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?

Best

--

Farzaneh

_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

--

Farzaneh

_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

------------------------------

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I agree with Tatiana’s interpretation. That is, as reflected in the Annex 6 text: I was not part of the CCWG WS1 discussions. And I (therefore) think that Matthew’s very pragmatic suggestion makes total sense.

On 07 Sep 2016, at 00:02, matthew shears <mshears@cdt.org> wrote:

I suggest that we start with the approach outlined by Greg and Tatiana - it is appropriate to the immediate task - the bylaw. Once we have addressed that - which should be our primary focus - then we could perhaps discuss other matters, perhaps. We have a lot of work to do, lets not over-egg it from the start.

On 06/09/2016 22:56, Rudolph Daniel wrote:

...

I am closer to Daniel Appelman's understanding than to Tatiana's right about now. :) rd

On Sep 6, 2016 5:39 PM, "Dr. Tatiana Tropina" <t.tropina@mpicc.de> wrote: Dear Daniel,

I would rather disagree with broadening the view that much.

First of all, there are other documents from CCWG than define the tasks of this group, than only the bylaw text. In particular, Annex 06 (p. 2) of the CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations report, that was approved, says:

"Include the following in Work Stream 2 activities: - Develop an FOI-HR for the Human Rights Bylaw" (underlined by me).

The drafters of the CCWG report could have been of course more specific and put the wording "FoI for the HR Bylaw" everywhere, but I think it actually never dawned on them that there will be a discussion on broadening the scope of the FoI that much. At least the wording of the Annex 6 (and Annex 12 about WS2) indicates that it's a FoI for bylaw and not for the whole human rights impact assessment (HRIA) within ICANN.

Secondly, even a mere interpretation of the bylaw will require a lot of analysis of what you refer to, but extending the work of this group to the whole HRIA is outside of our mandate I think. There was a report of the Cross-community working party for human rights (which is not the part of the work of this CCWG) prepared for the ICANN meeting in Dublin that actually showed that the full HRIA, though might be a desirable option, is a time- and resources-consuming process and might be recommended only in a long-term. We can of course consider recommending ICANN to carry out a HRIA as a part of the FoI, why not, but doing the whole assessment on our own, in this group, rather looks like an impossible task - both in terms of resources and mandate.

I think the work of this group should definitely focus on the bylaw interpretation at the moment, because we do have to agree on what the bylaw means first before we will make any further recommendations.

warm regards Tatiana

On 06/09/16 20:36, Daniel Appelman wrote:

...

I would take a broader view than the one Greg has just suggested. Nowhere in the Bylaw and the conditions upon which it would become effective does it say that the WS2 team’s activities should be restricted to footnoting the Bylaw or prohibited from making recommendations on human rights-related policies. In fact, our mandate is to develop and recommend a “framework of interpretation for human rights”. This is much broader than providing “a framework of interpretation for the Bylaw”. We will not be doing our job unless we consider what human rights are impacted by ICANN and its relationships with third parties and then develop recommendations as to the scope of ICANN’s obligations under the Bylaw to respect those human rights in engaging in those relationships.

Dan

Daniel Appelman

Partner

Montgomery & Hansen, LLP

525 Middlefield Road, Suite 250

Menlo Park, CA 94025

650.331.7014 (direct)

650-245-8361 (mobile)

650.331.7000 (main)

650.331.7001 (fax)

www.mh-llp.com

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 06, 2016 11:13 AM To: Aikman-Scalese, Anne Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here.

We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them.

We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one.

Greg

On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:

Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights).

I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to,

1. Award of registry contracts

2. Contractual provisions required in registry (and by implication registrar) contracts.

3. Adjudication of Requests for Reconsideration

4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments

5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes.

Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process.

As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2.

The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved.

I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?)

Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights.

Anne

Anne E. Aikman-Scalese

Of Counsel

520.629.4428 office

520.879.4725 fax

AAikman@lrrc.com

_____________________________

<Mail Attachment.png>

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Sunday, September 04, 2016 11:13 AM To: Paul Rosenzweig

Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Dear all,

I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be:

• What substance we see in the phrase human rights inside ICANN Mission? • When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases.

The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars

-----------------------------------------------------------------------------

Tijani BEN JEMAA

Executive Director

Mediterranean Federation of Internet Associations (FMAI)

Phone: +216 98 330 114

+216 52 385 114

-----------------------------------------------------------------------------

Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> a écrit :

Dear Farzaneh

Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect?

Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary.

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

VOIP: +1 (202) 738-1739

www.redbranchconsulting.com

My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can.

The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights.

Best

Farzaneh

On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All,

I do not understand the meaning and purpose of these questions.

Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text.

We can not send out these questions at all

Reagrds

Kavouss

2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com>:

Hi all,

Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss:

Considering ICANN's scope and mission, when should ICANN uphold human rights?

- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application)

- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?

Best

--

Farzaneh

_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

--

Farzaneh

_______________________________________________ Ws2-hr mailing list 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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Why do we not have the time? The urgency of WS1 is over. We took 6 years to get the FoI for ccTLD redelegation right. I'm not suggesting we take 6, or even 3. But an inaccurate claim of urgency cannot be used to support an inferior outcome. On 07/09/16 10:13, Arasteh wrote:

Dear Tatiana I know how much you are attached with this subject which might have various reasons . However, we are neither the UN nor UNHRC. John Roggie worked more than 3 years to address the matter within the framework of UN mandates which is, on the one hand cover the obligations and responsibilities of States and, on the other hand, much broader than limited activities of ICANN. I hope we would not be driven in a Weil that could never get out of it. Pls be Objective, Precise, On the Point as we do not have the luxury of working three or more years Regards Kavouss

Sent from my iPhone

...

On 7 Sep 2016, at 10:51, Bastiaan Goslings <bastiaan.goslings@ams-ix.net> wrote:

I agree with Tatiana’s interpretation. That is, as reflected in the Annex 6 text: I was not part of the CCWG WS1 discussions. And I (therefore) think that Matthew’s very pragmatic suggestion makes total sense.

...

On 07 Sep 2016, at 00:02, matthew shears <mshears@cdt.org> wrote:

I suggest that we start with the approach outlined by Greg and Tatiana - it is appropriate to the immediate task - the bylaw. Once we have addressed that - which should be our primary focus - then we could perhaps discuss other matters, perhaps. We have a lot of work to do, lets not over-egg it from the start.

...

On 06/09/2016 22:56, Rudolph Daniel wrote: I am closer to Daniel Appelman's understanding than to Tatiana's right about now. :) rd

On Sep 6, 2016 5:39 PM, "Dr. Tatiana Tropina" <t.tropina@mpicc.de> wrote: Dear Daniel,

I would rather disagree with broadening the view that much.

First of all, there are other documents from CCWG than define the tasks of this group, than only the bylaw text. In particular, Annex 06 (p. 2) of the CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations report, that was approved, says:

"Include the following in Work Stream 2 activities: - Develop an FOI-HR for the Human Rights Bylaw" (underlined by me).

The drafters of the CCWG report could have been of course more specific and put the wording "FoI for the HR Bylaw" everywhere, but I think it actually never dawned on them that there will be a discussion on broadening the scope of the FoI that much. At least the wording of the Annex 6 (and Annex 12 about WS2) indicates that it's a FoI for bylaw and not for the whole human rights impact assessment (HRIA) within ICANN.

Secondly, even a mere interpretation of the bylaw will require a lot of analysis of what you refer to, but extending the work of this group to the whole HRIA is outside of our mandate I think. There was a report of the Cross-community working party for human rights (which is not the part of the work of this CCWG) prepared for the ICANN meeting in Dublin that actually showed that the full HRIA, though might be a desirable option, is a time- and resources-consuming process and might be recommended only in a long-term. We can of course consider recommending ICANN to carry out a HRIA as a part of the FoI, why not, but doing the whole assessment on our own, in this group, rather looks like an impossible task - both in terms of resources and mandate.

I think the work of this group should definitely focus on the bylaw interpretation at the moment, because we do have to agree on what the bylaw means first before we will make any further recommendations.

warm regards Tatiana

...

On 06/09/16 20:36, Daniel Appelman wrote: I would take a broader view than the one Greg has just suggested. Nowhere in the Bylaw and the conditions upon which it would become effective does it say that the WS2 team’s activities should be restricted to footnoting the Bylaw or prohibited from making recommendations on human rights-related policies. In fact, our mandate is to develop and recommend a “framework of interpretation for human rights”. This is much broader than providing “a framework of interpretation for the Bylaw”. We will not be doing our job unless we consider what human rights are impacted by ICANN and its relationships with third parties and then develop recommendations as to the scope of ICANN’s obligations under the Bylaw to respect those human rights in engaging in those relationships.

Dan

Daniel Appelman

Partner

Montgomery & Hansen, LLP

525 Middlefield Road, Suite 250

Menlo Park, CA 94025

650.331.7014 (direct)

650-245-8361 (mobile)

650.331.7000 (main)

650.331.7001 (fax)

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 06, 2016 11:13 AM To: Aikman-Scalese, Anne Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here.

We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them.

We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one.

Greg

On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com> wrote:

Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights).

I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to,

1. Award of registry contracts

2. Contractual provisions required in registry (and by implication registrar) contracts.

3. Adjudication of Requests for Reconsideration

4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments

5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes.

Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process.

As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2.

The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved.

I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?)

Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights.

Anne

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Tijani BEN JEMAA Sent: Sunday, September 04, 2016 11:13 AM To: Paul Rosenzweig

Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Dear all,

I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be:

• What substance we see in the phrase human rights inside ICANN Mission? • When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases.

The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars

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Tijani BEN JEMAA

Executive Director

Mediterranean Federation of Internet Associations (FMAI)

Phone: +216 98 330 114

+216 52 385 114

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Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> a écrit :

Dear Farzaneh

Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect?

Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary.

Paul

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From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can.

The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights.

Best

Farzaneh

On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All,

I do not understand the meaning and purpose of these questions.

Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text.

We can not send out these questions at all

Reagrds

Kavouss

2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com>:

Hi all,

Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss:

Considering ICANN's scope and mission, when should ICANN uphold human rights?

- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application)

- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?

Best

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Farzaneh

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Thanks David. This is exactly why we cannot use the Ruggie definition of “respect”. Again, it is difficult for me to see how Ruggie applies since those principles are developed in relation to a corporation that operates “top down” rather than “bottom up” and were not developed in relation to the unique MS policy development framework that applies to ICANN. The Ruggie definition of “respect” would require ICANN action in the context of evaluating and minimizing Human Rights adverse impact in all its business relationships. ICANN’s primary business relationships are registry contracts. This includes award and renewal of gTLD contracts (As a side note, and also noting my bias as an IP lawyer in favor of the protection of trademark and copyright, the UDRP and URS processes are not “business relationships” of ICANN. ) These are dispute resolution processes developed through a bottom-up MS approach – again a concept that is completely foreign to businesses for which Ruggie principles were developed. So from my point of view, Ruggie is inapposite and we need to “start from scratch” so that the FOI being developed recognizes the existing ICANN MS Model and the existing policy development process and functions of policy advice coming from the GAC and ALAC and other entities in addition to the GNSO. This is definitely a “balancing act” of Core Values for the Community and the Board. Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate. I would therefore suggest a preamble to the FOI along the following lines: PREAMBLE TO HUMAN RIGHTS FRAMEWORK OF INTERPRETATION “WHEREAS the application of internationally-recognized Human Rights principles in the context of ICANN’s mission and scope requires policy development processes within the ICANN Community and WHEREAS, the application of these principles to ICANN’s activities may require a balancing of ICANN’s Core Values as outlined in the By-Laws at Subparagraph ____(c ) (REPEAT text previously referenced by Jorge Cancion and pasted below) NOW THEREFORE, the CCWG- ACCT recommends the following Framework of Interpretation in relation to the application of the new Human Rights By-Law adopted by the Board on ___________ (date) to ICANN’s scope and mission.” Separately, I personally believe a Human Rights Objection process may be appropriate, thereby taking ICANN itself out of the content regulation business in relation to gTLD applications and awards, but this of course would be a matter for policy development. Anne "(c) The Commitments and Core Values are intended to apply in the broadest possible range of circumstances. The Commitments reflect ICANN’s fundamental compact with the global Internet community and are intended to apply consistently and comprehensively to ICANN’s activities. The specific way in which Core Values are applied, individually and collectively, to any given situation may depend on many factors that cannot be fully anticipated or enumerated. Situations may arise in which perfect fidelity to all Core Values simultaneously is not possible. Accordingly, in any situation where one Core Value must be balanced with another, potentially competing Core Value, the result of the balancing must serve a policy developed through the bottom-up multistakeholder process or otherwise best serve ICANN’s Mission." Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D2085A.3F170DC0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of McAuley, David Sent: Tuesday, September 06, 2016 3:34 PM To: Dr. Tatiana Tropina; ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Interesting discussion among thoughtful folks, in which I find myself with Greg and Tanya. Work Stream One, in my opinion/recollection, never intended for the FoI team to throw open the doors and see what we could come up with. I recall a great deal of concern over the notion of an expansive HR commitment and don’t think we would have reached closure if the HR provision would have been a broad one. I think Tanya captured that correctly. As I read it, the bylaw that we are interpreting creates the FoI sub-team ‘charter’ (Section 27.2) as an effort containing “limitations” rather than an invitation to expand the bylaw (Article 1.2(b)(viii) begins “Subject to the limitations set forth in Section 27.2 …”). Whatever FoI we come up with must be approved by the full CCWG, will be sent through the COs, and is subject to board approval – some of the same drivers that helped shape the focus of the Bylaw we came up with in Section 1.2(b)(viii). And the FoI must be consistent with a bylaw that requires respect for HR within the scope of ICANN’s narrow and unique mission. David David McAuley International Policy Manager Verisign Inc. 703-948-4154 From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Dr. Tatiana Tropina Sent: Tuesday, September 06, 2016 5:38 PM To: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Dear Daniel, I would rather disagree with broadening the view that much. First of all, there are other documents from CCWG than define the tasks of this group, than only the bylaw text. In particular, Annex 06 (p. 2) of the CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations report, that was approved, says: "Include the following in Work Stream 2 activities: - Develop an FOI-HR for the Human Rights Bylaw" (underlined by me). The drafters of the CCWG report could have been of course more specific and put the wording "FoI for the HR Bylaw" everywhere, but I think it actually never dawned on them that there will be a discussion on broadening the scope of the FoI that much. At least the wording of the Annex 6 (and Annex 12 about WS2) indicates that it's a FoI for bylaw and not for the whole human rights impact assessment (HRIA) within ICANN. Secondly, even a mere interpretation of the bylaw will require a lot of analysis of what you refer to, but extending the work of this group to the whole HRIA is outside of our mandate I think. There was a report of the Cross-community working party for human rights (which is not the part of the work of this CCWG) prepared for the ICANN meeting in Dublin that actually showed that the full HRIA, though might be a desirable option, is a time- and resources-consuming process and might be recommended only in a long-term. We can of course consider recommending ICANN to carry out a HRIA as a part of the FoI, why not, but doing the whole assessment on our own, in this group, rather looks like an impossible task - both in terms of resources and mandate. I think the work of this group should definitely focus on the bylaw interpretation at the moment, because we do have to agree on what the bylaw means first before we will make any further recommendations. warm regards Tatiana On 06/09/16 20:36, Daniel Appelman wrote: I would take a broader view than the one Greg has just suggested. Nowhere in the Bylaw and the conditions upon which it would become effective does it say that the WS2 team’s activities should be restricted to footnoting the Bylaw or prohibited from making recommendations on human rights-related policies. In fact, our mandate is to develop and recommend a “framework of interpretation for human rights”. This is much broader than providing “a framework of interpretation for the Bylaw”. We will not be doing our job unless we consider what human rights are impacted by ICANN and its relationships with third parties and then develop recommendations as to the scope of ICANN’s obligations under the Bylaw to respect those human rights in engaging in those relationships. Dan Daniel Appelman Partner Montgomery & Hansen, LLP 525 Middlefield Road, Suite 250 Menlo Park, CA 94025 650.331.7014 (direct) 650-245-8361 (mobile) 650.331.7000 (main) 650.331.7001 (fax) www.mh-llp.com<http://www.mh-llp.com/> [New Logo - email ver] This e-mail message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, and destroy all copies of the original message. To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 06, 2016 11:13 AM To: Aikman-Scalese, Anne Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Whatever we do, we can't create gTLD policy. We can (and indeed must) provide guidance in how the Bylaw should be interpreted by those engaged in gTLD policy development. But the policy development process cannot take place here. We also should not be creating procedural mechanisms for when a Human Rights impact evaluation is triggered. Nor should we even be the one to create or mandate a human rights impact evaluation. Again, we should provide guidance in how the Bylaw should be interpreted by those who might consider whether to create such mechanisms or evaluations, and those who create them. We need to stick to our mandate, which is to provide a Framework of Interpretation for the Bylaw. To my mind, this essentially means "annotating" the Bylaw, with what amount to a series of footnotes, so that the language used will be used consistently by groups that come after this one. Greg On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>> wrote: Protection of registrant data is certainly important. This was studied for quite a long time by the Expert Working Group on WhoIs and is now the subject of a GNSO Policy Development Process. As I understand it, the new framework for Directory Registry Services essentially proposes a “need to know” threshold test. I think it would be naïve for this Workstream 2 group to hold that Human Rights (in the form of privacy and freedom of expression) were not considered by the EWG or won’t be considered in the final outcome of the PDP. In fact, the activities of these groups with respect to registrant data have sought to balance two clearly listed Human Rights guidelines in the UDRP – that is the privacy right and the rights of authors (i.e. intellectual property rights). I don’t think the work done in the FOI for Workstream 2 Human Rights is supposed to trump the policy work of the GNSO or the public policy advice of the GAC or the advice of the ALAC. Still not sure, however, how this Framework of Interpretation for Human Rights can be considered anything other than new gTLD policy when applied to ICANN’s new gTLD activities, including, but not limited to, 1. Award of registry contracts 2. Contractual provisions required in registry (and by implication registrar) contracts. 3. Adjudication of Requests for Reconsideration 4. Adjudication of complaints filed with ICANN with respect to Spec 11 Public Interest Commitments 5. Possible revocation of gTLD contract awards in relation to registry operators using TLDs for Human Rights abuse purposes. Separately, regarding, for example, UDRP and URS proceedings, these are not actually activities of ICANN. These are dispute resolution mechanisms that take place outside ICANN’s operations and are less directly implicated in the Human Rights framework than the activities listed in 1 through 5 above. However, these are mechanisms developed through the ICANN Policy Development Process. As a practical matter, it would seem that the best this WS2 team can do is establish a procedural mechanism for determining when a Human Rights Impact review is triggered and a process where the Community conducts such a Human Rights Impact review. This necessarily would have to correlate with Policy Development. In the end, the various policy advisory groups may well disagree as they provide advice to the Board and it is the Board which makes the final decision, even in the new Empowered Community model. The Board receives advice from many different sources. One such source is the European Commission, whose advice is one reason this new By-Law exists and one reason this group exists in WS2. The only practical way forward from my point of view is for this group to define criteria as to when a Human Rights Impact evaluation is triggered and how it should be conducted within policy-making activities already going on in the Community. This would include the five items listed above if indeed we are to use such general language as is proposed in the FOI in relation to “respect human rights” in a manner which requires ICANN to take action to eliminate or reduce adverse Human Rights impact in the business relationships and activities with which it is involved. I can compare all this to the process in the U.S. which requires an Environmental Impact Statement as to various business activities. The criteria for a Human Rights Impact Statement might be a starting point. However, in developing such a Human Rights Impact evaluation, and as agreed in WS1, we cannot focus on just one or two or three of the relevant Human Rights. None of the Human Rights documents we refer to rank these rights in order of priority as far as I know. The rights of authors and indigenous peoples I represent are just as important as the rights of freedom of expression and privacy. In fact, author’s rights (including the copyright rights which give the authors the exclusive right to make changes to their own works) may be equally important to condemning oppressive governmental action or exploitation of native culture for corporate or personal gain. (Why would registrant information be protected for sellers of fake Navajo jewelry?) Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my firm represents the Navajo Nation for certain intellectual property matters. (We currently have no instructions from either with respect to participation in ICANN so my views are my own.) In ICANN’s activities, it appears to me that a Human Rights Impact analysis is ALWAYS a question of balancing various Human Rights. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428<tel:520.629.4428> office 520.879.4725<tel:520.879.4725> fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image006.png@01D2085A.200B0E40] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] On Behalf Of Tijani BEN JEMAA Sent: Sunday, September 04, 2016 11:13 AM To: Paul Rosenzweig Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Dear all, I agree with Paul that among the main questions for us to come up with a Frame of Interpretation of the Human Rights in the ICANN mission would be: * What substance we see in the phrase human rights inside ICANN Mission? * When, if ever, ICANN should give that substance (whatever it may be) effect? I can’t say they are the only meaningful questions since there will be subsequent questions. But let’s start with the first question: I think that to address it, we may begin by giving practical easy cases. The protection of the registrant data is one of the most obvious case of human right that falls in the ICANN mission. This may also affect the ICANN contract with registries/registrars ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: +216 98 330 114<tel:%2B216%2098%20330%20114> +216 52 385 114<tel:%2B216%2052%20385%20114> ----------------------------------------------------------------------------- Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit : Dear Farzaneh Of course your questions are meaningful. Indeed, the ONLY two meaningful questions in this discussion are a) what substance we see in the phrase human rights? And b) When, if ever, ICANN should give that substance (whatever it may be) effect? Your questions clearly go to the later of these two issues. Members of the group may disagree on the answers we reach, but you’re asking questions that have real meaning – whatever anyone may say to the contrary. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660<tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650<tel:%2B1%20%28202%29%20329-9650> VOIP: +1 (202) 738-1739<tel:%2B1%20%28202%29%20738-1739> www.redbranchconsulting.com<http://www.redbranchconsulting.com/> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of farzaneh badii Sent: Sunday, September 4, 2016 11:56 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Calling something "not meaningful" is very easy. But it does not devalue its merits, fortunately. Please provide a rationale for why the questions are not meaningful. I don't have to consult with the co-chairs to discuss the questions here. If the group feels that it is unnecessary to discuss these questions they can simply not respond, if they feel we should re-formulate them, then we can. The questions are to clarify what we mean by ICANN should not become a content regulator. The discussions that can arise responding to the question and sub-questions which I have posted can lead us towards a more tangible understanding of what we mean when we say ICANN should not become a content regulator and should not go out of its scope and mission when upholding human rights. Best Farzaneh On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear All, I do not understand the meaning and purpose of these questions. Perhaps the author of the questions could consult other two co chairs and come up with meaningfull text. We can not send out these questions at all Reagrds Kavouss 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com<mailto:farzaneh.badii@gmail.com>>: Hi all, Sorry for sending out the questions late. I wanted to provide a gist of what we discussed during our call and then provide the questions but unfortunately, we still do not have the recording. Below are some questions for the group to discuss: Considering ICANN's scope and mission, when should ICANN uphold human rights? - In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) - During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights? 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