Re: [Ws2-hr] When should ICANN uphold human rights?
What Anne has expressed here is pretty close to my understanding of a workable pathway. 'Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate.' end quote That is also my view currently. Is it not possible that the GAC or some other policy development process may, when viewed under the lens of a 'respect for for human rights' p d p, is rejected or modified to bring it in line with a concensus position? rd On Sep 6, 2016 7:18 PM, "Aikman-Scalese, Anne" <AAikman@lrrc.com> wrote: 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 _____________________________ 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 *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 <ws2-hr-bounces@icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Tuesday, September 06, 2016 5:38 PM *To:* 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 <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/> [image: 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 <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 +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 <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. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ 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. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
Recognising it in the FoI is exactly the job of an FoI. But we cannot use the MS model to reject the corpus of human rights. For example, both freedom of expression and the right to property (inlcuding intellectual property) are human rights. (In the Councl of Europe states they are binding rights - Arts 10 and Art 1 Prot 1 ECHR respectively) They are QUALIFIED human rights. Which means they must be balanced. As a private company, ICANN is not obliged to respect either right, under the applicable law. But, through an MS process, and to provide credibility as a multistakeholder alternative to a multinational internet solution (to which Human Rights automatically would apply), ICANN voluntarily adopted the By Law, undertaking to respect Human Rights. Now, faced with a conflict in policy, or in an adminstrative process, suppose that ICANN decideds (through a multistakeholder process in which the advocates of property are better organised that the advocates of free expression) ICANN produeces a policy which gives undue weight to property owners at the expense of free expression. Oh, think of an example -- a possible future revision of the UDRP. ICANN MUST hold itself to the same standards as governents. It must conduct the exact same balancing exercise as Human Rights jurists do, when faced with an allegation of human rights infringments. Most Human Rights cases are not allegations of torture, slavery or extrajudicial killing. They result from the exercise of executive power unfairly against one sector or another. And having read the quoted section of the Ruggie Principles, I do not think this amounts to a redefinition of the common use of the term 'respect' in the context of the UDHR and ECHR that predates Ruggie. On 07/09/16 02:17, Rudolph Daniel wrote:
What Anne has expressed here is pretty close to my understanding of a workable pathway.
'Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate.' end quote
That is also my view currently.
Is it not possible that the GAC or some other policy development process may, when viewed under the lens of a 'respect for for human rights' p d p, is rejected or modified to bring it in line with a concensus position? rd
On Sep 6, 2016 7:18 PM, "Aikman-Scalese, Anne" <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> wrote:
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.____
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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_. ____
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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. ____
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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. ____
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I would therefore suggest a preamble to the FOI along the following lines:____
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PREAMBLE TO HUMAN RIGHTS FRAMEWORK OF INTERPRETATION____
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“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 ____
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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)____
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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.”____
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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.____
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Anne____
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"(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."____
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*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>____
_________________________________
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Lewis Roca Rothgerber Christie LLP____
One South Church Avenue, Suite 700____
Tucson, Arizona 85701-1611____
lrrc.com <http://lrrc.com/>____
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*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 *McAuley, David *Sent:* Tuesday, September 06, 2016 3:34 PM *To:* Dr. Tatiana Tropina; ws2-hr@icann.org <mailto:ws2-hr@icann.org>
*Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?____
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Interesting discussion among thoughtful folks, in which I find myself with Greg and Tanya. ____
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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. ____
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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 …”).____
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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. ____
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David ____
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David McAuley____
International Policy Manager____
Verisign Inc.____
703-948-4154 <tel:703-948-4154>____
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*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 *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?____
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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 ____
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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.____
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Dan____
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*Daniel Appelman*____
Partner____
*Montgomery & Hansen, LLP*____
525 Middlefield Road, Suite 250____
Menlo Park, CA 94025____
*650.331.7014 <tel:650.331.7014> (direct)*____
650-245-8361 <tel:650-245-8361> (mobile)____
650.331.7000 <tel:650.331.7000> (main)____
650.331.7001 <tel:650.331.7001> (fax)____
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*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 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?____
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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.____
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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.____
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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____
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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).____
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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,____
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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.____
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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. ____
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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.____
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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?)____
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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> [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____
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Phone: +216 98 330 114 <tel:%2B216%2098%20330%20114>____
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Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit :____
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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?____
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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.____
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Paul____
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Paul Rosenzweig____
paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>____
O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>____
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*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?____
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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. ____
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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. ____
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Best____
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Farzaneh ____
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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 ____
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2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>>:____
Hi all, ____
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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:____
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Considering ICANN's scope and mission, when should ICANN uphold human rights?____
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- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) ____
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- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?____
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Best ____
____
____
-- ____
Farzaneh____
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____
____
____
-- ____
Farzaneh ____
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Nigel, when you take the position that " ICANN MUST hold itself to the same standards as governments", do you mean ICANN the Empowered Community or ICANN the Board of Directors? Are you saying that Human Rights policy (as opposed to applicable US law) is an exception to the ICANN MS bottom-up policy development process? Would this not conflict with what the By-Law on determining the Public Interest says? (I believe it says the Global Public Interest is determined through the bottom-up MS process.) My assumption has always been that the FOI itself, once recommended by CCWG-ACCT, would then be subject to public policy input from the GAC as well as comments from ALAC (and others) and then guidance from the GNSO in one of its newly-adopted expedited procedures, that is, either GNSO Policy Input, GNSO Policy Guidance, or GNSO Expedited PDP. I had also understood that the HR Working Party was participating in and seeking input to, for example, the Subsequent Procedures PDP. Regarding the UDRP, there is likely some creative tension that could arise in policy advice provided to the Board. For example, GNSO, where contracted parties dominate and tend to form alliances with Non-Commercial interests in the realm of free speech and due process, might produce a majority in favor of eliminating default judgment in a UDRP proceeding. The claim would be that default judgment constitutes a lack of due process, though that has certainly never been true in the US judicial system and I don't believe it is true in Europe either. However, it is quite possible that the GAC and other entities, including individual governments or regional governments, might weigh in where consumer protection is involved. Top examples of course are fake pharmaceuticals, toys with lead paint, and other sales which involve the public safety or consumer financial fraud (all of which affect trust and confidence in the Internet). If an inability to obtain a default judgment as to these matters results in death and illness as products continue to be sold by persons who cannot be identified or held to default judgment OR in consumer financial fraud perpetrated by persons who cannot be identified or held to default judgment, you may definitely find governments weighing in since any lack of ability to enforce in private industry throws the burden and cost of preventing such activities on governments. (This is the reason, for example, that US corporations are required to name agents for service of process - so that enforcement can occur via the private sector. ) For the record, I support the creation of a Human Rights Objection to new gTLD applications. The award of a gTLD contract is the most proximate Business Relationship ICANN has within its scope and mission. Because ICANN is not supposed to be a content regulator, however, I would develop criteria applicable to this Objection and have the matter adjudicated in a different forum by an independent panel in the same manner as other Objection processes. I think this is where the FOI assumes its greatest importance. As you point out, any Human Rights evaluation applicable here would involve a "balancing act" by the panel with reference to ICANN's FOI for Human Rights. My view is that the very existence of such an Objection procedure would have a very significant deterrent effect on parties seeking to apply for new TLDs for either an overt or covert abusive purpose. Are you saying that in applying the Ruggie principles, ICANN itself (Board or new gTLD Program Committee if it exists in next round) would be obligated to make a determination as to any potential adverse impact on Human Rights in the new gTLD application context? And to do so without policy guidance on that application from the GNSO, GAC , ALAC or other advisory entities? I do understand why "applicable law" directly binds the ICANN Board, but it appears to me that internationally recognized Human Rights principles are (1) a matter of policy which (2) always involves a balancing act as you also note. In addition to respecting the MS policy development process, my concern here is that we not create a situation where the ICANN Board is unable to act because its obligations are not clear-cut. 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 Nigel Roberts Sent: Tuesday, September 06, 2016 11:35 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Recognising it in the FoI is exactly the job of an FoI. But we cannot use the MS model to reject the corpus of human rights. For example, both freedom of expression and the right to property (inlcuding intellectual property) are human rights. (In the Councl of Europe states they are binding rights - Arts 10 and Art 1 Prot 1 ECHR respectively) They are QUALIFIED human rights. Which means they must be balanced. As a private company, ICANN is not obliged to respect either right, under the applicable law. But, through an MS process, and to provide credibility as a multistakeholder alternative to a multinational internet solution (to which Human Rights automatically would apply), ICANN voluntarily adopted the By Law, undertaking to respect Human Rights. Now, faced with a conflict in policy, or in an adminstrative process, suppose that ICANN decideds (through a multistakeholder process in which the advocates of property are better organised that the advocates of free expression) ICANN produeces a policy which gives undue weight to property owners at the expense of free expression. Oh, think of an example -- a possible future revision of the UDRP. ICANN MUST hold itself to the same standards as governents. It must conduct the exact same balancing exercise as Human Rights jurists do, when faced with an allegation of human rights infringments. Most Human Rights cases are not allegations of torture, slavery or extrajudicial killing. They result from the exercise of executive power unfairly against one sector or another. And having read the quoted section of the Ruggie Principles, I do not think this amounts to a redefinition of the common use of the term 'respect' in the context of the UDHR and ECHR that predates Ruggie. On 07/09/16 02:17, Rudolph Daniel wrote:
What Anne has expressed here is pretty close to my understanding of a workable pathway.
'Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate.' end quote
That is also my view currently.
Is it not possible that the GAC or some other policy development process may, when viewed under the lens of a 'respect for for human rights' p d p, is rejected or modified to bring it in line with a concensus position? rd
On Sep 6, 2016 7:18 PM, "Aikman-Scalese, Anne" <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> wrote:
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.____
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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_. ____
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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. ____
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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. ____
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I would therefore suggest a preamble to the FOI along the following lines:____
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PREAMBLE TO HUMAN RIGHTS FRAMEWORK OF INTERPRETATION____
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"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 ____
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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)____
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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."____
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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.____
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Anne____
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"(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."____
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*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>____
_________________________________
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Lewis Roca Rothgerber Christie LLP____
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lrrc.com <http://lrrc.com/>____
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*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 *McAuley, David *Sent:* Tuesday, September 06, 2016 3:34 PM *To:* Dr. Tatiana Tropina; ws2-hr@icann.org <mailto:ws2-hr@icann.org>
*Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?____
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Interesting discussion among thoughtful folks, in which I find myself with Greg and Tanya. ____
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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. ____
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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 ...").____
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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. ____
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David ____
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David McAuley____
International Policy Manager____
Verisign Inc.____
703-948-4154 <tel:703-948-4154>____
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*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 *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?____
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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 ____
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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.____
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Dan____
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*Daniel Appelman*____
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*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 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?____
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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.____
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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.____
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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____
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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).____
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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,____
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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.____
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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. ____
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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.____
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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?)____
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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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*Anne E. Aikman-Scalese*____
Of Counsel____
520.629.4428 <tel:520.629.4428> office____
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AAikman@lrrc.com <mailto:AAikman@lrrc.com>____
_________________________________
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Lewis Roca Rothgerber Christie LLP____
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*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?____
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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 <tel:%2B216%2098%20330%20114>____
+216 52 385 114 <tel:%2B216%2052%20385%20114>____
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Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com>> a écrit :____
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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?____
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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.____
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Paul____
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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/>____
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*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?____
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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. ____
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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. ____
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Best____
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Farzaneh ____
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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 ____
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2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii@gmail.com <mailto:farzaneh.badii@gmail.com>>:____
Hi all, ____
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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:____
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Considering ICANN's scope and mission, when should ICANN uphold human rights?____
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- In its consideration to enter into contracts with registries and registrars? (for example, when they are considering a new gTLD application) ____
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- During the contractual relationship with the registries and the registrars by obligating the registries and registrars to enforce human rights?____
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Best ____
____
____
-- ____
Farzaneh____
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-- ____
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Human Rights are fundamental rights. ICANN must hold itself to that minumum standard. Failing to do so makes the ICANN system a lesser alternative to a multinational, treaty-based solution. It is trite public policy (at least for those countries that adhere to the UDHR and ECHR) that a certain minumum of human rights standards must be ensured. These include - the right to life - freedom from slavery - freedom from torture - the right to a fair hearing (when considering civil as well as criminal rights and obligations) - the right to property (incuding intellectual property) - the right to free expression. Some of these rights are absolute. You are surely not suggesting that the multistakeholder PDP takes precedence over an obligation to ensure the right to life? Some are qualified. It is FOR the multistakeholder (i.e. legislative) process to bring forward details proposals, for example, on exactly HOW the right to free expression is to be balanced against the right to property (the UDRP is a particular example of where this creative tension manifests its So it's not for ICANN to re-imagine or re-legislate human rights -- it is for us to pro-actively set an example of how we incorpoate fundamental rights as being a core value of our system. Otherwise, a UN, treaty-based arrangement has clear public policy advantage as we cannot be trusted to hold ourselves to the minumum standards agreed between civilised nations/. On 07/09/16 21:45, Aikman-Scalese, Anne wrote:
Nigel, when you take the position that " ICANN MUST hold itself to the same standards as governments", do you mean ICANN the Empowered Community or ICANN the Board of Directors?
Are you saying that Human Rights policy (as opposed to applicable US law) is an exception to the ICANN MS bottom-up policy development process? Would this not conflict with what the By-Law on determining the Public Interest says? (I believe it says the Global Public Interest is determined through the bottom-up MS process.) My assumption has always been that the FOI itself, once recommended by CCWG-ACCT, would then be subject to public policy input from the GAC as well as comments from ALAC (and others) and then guidance from the GNSO in one of its newly-adopted expedited procedures, that is, either GNSO Policy Input, GNSO Policy Guidance, or GNSO Expedited PDP. I had also understood that the HR Working Party was participating in and seeking input to, for example, the Subsequent Procedures PDP.
Regarding the UDRP, there is likely some creative tension that could arise in policy advice provided to the Board. For example, GNSO, where contracted parties dominate and tend to form alliances with Non-Commercial interests in the realm of free speech and due process, might produce a majority in favor of eliminating default judgment in a UDRP proceeding. The claim would be that default judgment constitutes a lack of due process, though that has certainly never been true in the US judicial system and I don't believe it is true in Europe either. However, it is quite possible that the GAC and other entities, including individual governments or regional governments, might weigh in where consumer protection is involved. Top examples of course are fake pharmaceuticals, toys with lead paint, and other sales which involve the public safety or consumer financial fraud (all of which affect trust and confidence in the Internet). If an inability to obtain a default judgment as! to these
matters results in death and illness as products continue to be sold by persons who cannot be identified or held to default judgment OR in consumer financial fraud perpetrated by persons who cannot be identified or held to default judgment, you may definitely find governments weighing in since any lack of ability to enforce in private industry throws the burden and cost of preventing such activities on governments. (This is the reason, for example, that US corporations are required to name agents for service of process - so that enforcement can occur via the private sector. )
For the record, I support the creation of a Human Rights Objection to new gTLD applications. The award of a gTLD contract is the most proximate Business Relationship ICANN has within its scope and mission. Because ICANN is not supposed to be a content regulator, however, I would develop criteria applicable to this Objection and have the matter adjudicated in a different forum by an independent panel in the same manner as other Objection processes. I think this is where the FOI assumes its greatest importance. As you point out, any Human Rights evaluation applicable here would involve a "balancing act" by the panel with reference to ICANN's FOI for Human Rights. My view is that the very existence of such an Objection procedure would have a very significant deterrent effect on parties seeking to apply for new TLDs for either an overt or covert abusive purpose.
Are you saying that in applying the Ruggie principles, ICANN itself (Board or new gTLD Program Committee if it exists in next round) would be obligated to make a determination as to any potential adverse impact on Human Rights in the new gTLD application context? And to do so without policy guidance on that application from the GNSO, GAC , ALAC or other advisory entities?
I do understand why "applicable law" directly binds the ICANN Board, but it appears to me that internationally recognized Human Rights principles are (1) a matter of policy which (2) always involves a balancing act as you also note. In addition to respecting the MS policy development process, my concern here is that we not create a situation where the ICANN Board is unable to act because its obligations are not clear-cut.
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 Nigel Roberts Sent: Tuesday, September 06, 2016 11:35 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
Recognising it in the FoI is exactly the job of an FoI.
But we cannot use the MS model to reject the corpus of human rights.
For example, both freedom of expression and the right to property (inlcuding intellectual property) are human rights. (In the Councl of Europe states they are binding rights - Arts 10 and Art 1 Prot 1 ECHR respectively)
They are QUALIFIED human rights. Which means they must be balanced.
As a private company, ICANN is not obliged to respect either right, under the applicable law.
But, through an MS process, and to provide credibility as a multistakeholder alternative to a multinational internet solution (to which Human Rights automatically would apply), ICANN voluntarily adopted the By Law, undertaking to respect Human Rights.
Now, faced with a conflict in policy, or in an adminstrative process, suppose that ICANN decideds (through a multistakeholder process in which the advocates of property are better organised that the advocates of free expression) ICANN produeces a policy which gives undue weight to property owners at the expense of free expression. Oh, think of an example -- a possible future revision of the UDRP.
ICANN MUST hold itself to the same standards as governents. It must conduct the exact same balancing exercise as Human Rights jurists do, when faced with an allegation of human rights infringments.
Most Human Rights cases are not allegations of torture, slavery or extrajudicial killing. They result from the exercise of executive power unfairly against one sector or another.
And having read the quoted section of the Ruggie Principles, I do not think this amounts to a redefinition of the common use of the term 'respect' in the context of the UDHR and ECHR that predates Ruggie.
On 07/09/16 02:17, Rudolph Daniel wrote:
What Anne has expressed here is pretty close to my understanding of a workable pathway.
'Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate.' end quote
That is also my view currently.
Is it not possible that the GAC or some other policy development process may, when viewed under the lens of a 'respect for for human rights' p d p, is rejected or modified to bring it in line with a concensus position? rd
On Sep 6, 2016 7:18 PM, "Aikman-Scalese, Anne" <AAikman@lrrc.com <mailto:AAikman@lrrc.com>> wrote:
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.____
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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_. ____
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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. ____
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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. ____
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I would therefore suggest a preamble to the FOI along the following lines:____
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PREAMBLE TO HUMAN RIGHTS FRAMEWORK OF INTERPRETATION____
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"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 ____
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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)____
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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."____
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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.____
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Anne____
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"(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."____
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*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____
One South Church Avenue, Suite 700____
Tucson, Arizona 85701-1611____
lrrc.com <http://lrrc.com/>____
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*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 *McAuley, David *Sent:* Tuesday, September 06, 2016 3:34 PM *To:* Dr. Tatiana Tropina; ws2-hr@icann.org <mailto:ws2-hr@icann.org>
*Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?____
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Interesting discussion among thoughtful folks, in which I find myself with Greg and Tanya. ____
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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. ____
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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 ...").____
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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. ____
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David ____
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David McAuley____
International Policy Manager____
Verisign Inc.____
703-948-4154 <tel:703-948-4154>____
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*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 *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?____
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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 ____
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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.____
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*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 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____
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*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____
____
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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____
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Paul Rosenzweig____
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*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____
____
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____
____
-- ____
Farzaneh ____
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On Sep 8, 2016, at 2:00 AM, Nigel Roberts <nigel@channelisles.net> wrote:
Human Rights are fundamental rights.
Indeed.
ICANN must hold itself to that minumum standard. Failing to do so makes the ICANN system a lesser alternative to a multinational, treaty-based solution.
You actually have not stated an particular standard or norm or convention for the applicable human rights, nor specifically how you believe that such a standard should be applicable to ICANN.
It is trite public policy (at least for those countries that adhere to the UDHR and ECHR) that a certain minumum of human rights standards must be ensured.
These include
- the right to life - freedom from slavery - freedom from torture - the right to a fair hearing (when considering civil as well as criminal rights and obligations) - the right to property (incuding intellectual property) - the right to free expression.
Note that these rights may be in conflict with one another in some situations (e.g. right of free expression and right to property) We need to have a clear framework for ICANN that allows parties to express the implications that they feel will result from a particular policy development action (or potentially even policy implementation action)
Some of these rights are absolute. You are surely not suggesting that the multistakeholder PDP takes precedence over an obligation to ensure the right to life?
Intersting. You cite “right to life” (implying that it is absolute) and yet right to security of person is quite important as well. Many countries would suggest that security of person cannot preempt right to life, yet others would (via capital punishment/death penalty) take a different stance, thus undermining the assertion that there are “absolute” human rights. With respect to ICANN respect for the multistakeholder process, the point is simply that ICANN’s actions only have validity to the extent that they are based in the multistakeholder process; i.e. it is not clear that ICANN has any validity to take action arrived at by means other than multistakeholder processes – this does not mean that ICANN’s MS processes must “preempt” human rights, only that ICANN has a limited role and mission, one which is based on multistakeholder-based principles, and therefore if the action necessary to sustain human rights in some situations involves actions outside of the multistakeholder domain, it may be up to another party to undertake them. For example, it may become necessary to engage in the use of force (e.g. armies) to ultimately prevent extreme HR rights abuses – ICANN’s failure to participate doesn’t mean lack of support for the cause, only recognition that ICANN does not have to do everything in this world.
Some are qualified. It is FOR the multistakeholder (i.e. legislative) process to bring forward details proposals, for example, on exactly HOW the right to free expression is to be balanced against the right to property (the UDRP is a particular example of where this creative tension manifests its
So it's not for ICANN to re-imagine or re-legislate human rights -- it is for us to pro-actively set an example of how we incorpoate fundamental rights as being a core value of our system.
And here I thought the goal was to provide a human rights (HR) framework of interpretation, so that actions that occur at ICANN that may result in human rights impacts can be carefully considered in light of those potential impacts. This would include doings such things as: - Identifying reference norms or standards documents that specify the human rights that are commonly acknowledged and would be a valid basis for raising a potential concern with regard to ICANN actions - Establishing open and transparent processes for parties to raise concerns with an ICANN policy development action (or potentially with policy implementation actions) by noting the HR which they feel is impact and the manner of the impact - Ensuring that all potential HR impacts receive full and due consideration, including a complete and meaningful response that either sustains the concern or explanation of why (in balance) the potential impact is not probable or sufficient in magnitude to be sustained. As to “incorporating fundamental rights as being a core value of our system”, I have no idea what that means, but would note that we already have a long list of core values, and adding one more to the list (absent a clear framework of how it is to be applied) only increases the uncertainty of ICANN outcomes, rather than providing any durable mechanism to ensure that ICANN considers potential human right impacts in its activities. Thanks, /John p.s. my views alone. Feel free to use, reuse, discard, or destroy as desired.
Note that these rights may be in conflict with one another in some situations (e.g. right of free expression and right to property)
This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'. So, 'yes'. N. PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right. I would just note, that for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights, http://www.ihrec.ie/training/guides/echr/section4therigh.html In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003).
Nigel, I certainly appreciate your principled approach to the advancement of Human Rights and thank you for all your efforts in this regard. Having said that , I note that the obligations you cite are obligations of the State. Something else we are tangling with here is the question of applicable law to ICANN's jurisdiction. You are often reciting the law of the European Union and the law that binds Member States. But ICANN cannot maintain its global MS Model on the basis that it is a Member State of the EU. The answers to the questions we have posed to ICANN Legal will likely address these issues. With respect to Human Rights violations which occur within the EU, whether via the Internet or otherwise, as you know there is a forum for resolution of disputes - the European Court of Human Rights. The website you linked says: "The European Court of Human Rights considers complaints under the European Convention on Human Rights and decides whether ECHR rights have been violated. The Court interprets the Convention rights and clarifies their meaning." ICANN is not a State and is not a court. The entire Accountability structure certified by NTIA depends on the proper operation of MS bottom-up policy-making. Please note Annex 6 states that the scope of our work includes " Consistent with ICANN's existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process” (bold emphasis added) Thus, I am hopeful you are not suggesting that with respect to the draft FOI – HR, the CCWG-ACCT can just skip GAC Advice, ALAC Advice, and GNSO Guidance (see Annex A-2 to the Bylaws). My own view is that “broad multistakeholder involvement in the process” which is “consistent with ICANN’s existing processes and protocols” demands submission of the FOI-HR to the bodies within ICANN that are responsible for policy-making. (As a side note, it appears to me that if the FOI-HR is reasonably expected to result in changes to the Registry Agreement terms, that will require, at the very least, a GNSO Expedited Policy Development Process since, “consistent with ICANN’s existing processes and protocols”, Consensus Policy involving contractual commitments for registries may only be developed via either a full Policy Development Process or an Expedited Policy Development Process.) Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Thursday, September 08, 2016 4:44 AM To: John Curran Cc: Aikman-Scalese, Anne; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
Note that these rights may be in conflict with one another in some
situations (e.g. right of free expression and right to property)
This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'. So, 'yes'. N. PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right. I would just note, that for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights, http://www.ihrec.ie/training/guides/echr/section4therigh.html In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003). ________________________________ 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.
We should also keep in mind that once adopted by the Board, the FOI- HR provides a basis for Request for Reconsideration and Independent Review per Section 27 of the attachment. 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@01D209E0.62F36BD0] 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 Aikman-Scalese, Anne Sent: Thursday, September 08, 2016 12:47 PM To: 'Nigel Roberts'; John Curran Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] When should ICANN uphold human rights? Nigel, I certainly appreciate your principled approach to the advancement of Human Rights and thank you for all your efforts in this regard. Having said that , I note that the obligations you cite are obligations of the State. Something else we are tangling with here is the question of applicable law to ICANN's jurisdiction. You are often reciting the law of the European Union and the law that binds Member States. But ICANN cannot maintain its global MS Model on the basis that it is a Member State of the EU. The answers to the questions we have posed to ICANN Legal will likely address these issues. With respect to Human Rights violations which occur within the EU, whether via the Internet or otherwise, as you know there is a forum for resolution of disputes - the European Court of Human Rights. The website you linked says: "The European Court of Human Rights considers complaints under the European Convention on Human Rights and decides whether ECHR rights have been violated. The Court interprets the Convention rights and clarifies their meaning." ICANN is not a State and is not a court. The entire Accountability structure certified by NTIA depends on the proper operation of MS bottom-up policy-making. Please note Annex 6 states that the scope of our work includes " Consistent with ICANN's existing processes and protocols, consider how these new frameworks should be discussed and drafted to ensure broad multistakeholder involvement in the process” (bold emphasis added) Thus, I am hopeful you are not suggesting that with respect to the draft FOI – HR, the CCWG-ACCT can just skip GAC Advice, ALAC Advice, and GNSO Guidance (see Annex A-2 to the Bylaws). My own view is that “broad multistakeholder involvement in the process” which is “consistent with ICANN’s existing processes and protocols” demands submission of the FOI-HR to the bodies within ICANN that are responsible for policy-making. (As a side note, it appears to me that if the FOI-HR is reasonably expected to result in changes to the Registry Agreement terms, that will require, at the very least, a GNSO Expedited Policy Development Process since, “consistent with ICANN’s existing processes and protocols”, Consensus Policy involving contractual commitments for registries may only be developed via either a full Policy Development Process or an Expedited Policy Development Process.) Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Thursday, September 08, 2016 4:44 AM To: John Curran Cc: Aikman-Scalese, Anne; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
Note that these rights may be in conflict with one another in some
situations (e.g. right of free expression and right to property)
This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'. So, 'yes'. N. PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right. I would just note, that for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights, http://www.ihrec.ie/training/guides/echr/section4therigh.html In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003). ________________________________ 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. ________________________________ 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.
No, I do not refer to the European Union. The Convention is nothing to do with the EU. It applies to many more countries than the Member States, including Russia and (possibly not for much longer) Turkey. I simply refer to Convention articles since that is what I am more familar with -- however they are almost identical to the Universal Declaration. If it will help, I will use the UDHR Articles which specify the same rights and apply to more countries. The point is - as I have repeatedly said, is that the by-law (which in any event is in suspense), as currently written, absolves ICANN from any obligations to consider humna rights. As a private sector organsiation, in law, there is no "horizontal effect". Currently, the US Government's involvement insures the basic compliance with the UDHR, although it's not directly justiciable, the way similar rights are in Europa against 'emanations of the state'. Post-transition, ICANN has NO obligations, even once the by-law is in place. This is a major negative comparator when compared with a UN o=bidy. ICANN is going to be completely free to clamp down on free expression at the expense of intellectual property rights, if the MS policy development requires it to. Or vice versa. I am certainly not proposing skipping policy development in the multi-stakeholder model -- I have bene working to support htis since 1998. But what I am saying is, unless we find a way to ensure ICANN is seen to have a binding commitment to respect fundamental rights, which informs and is taken into account durin policy development we have a lesser solution -- in this regard -- to government involvement. N. -- Nigel Roberts BSc LLB FBCS FRSA nigel@roberts.co.uk +44 1481 520618 On 08/09/16 20:47, Aikman-Scalese, Anne wrote:
Nigel,
I certainly appreciate your principled approach to the advancement of Human Rights and thank you for all your efforts in this regard.
Having said that , I note that the obligations you cite are obligations of the State. Something else we are tangling with here is the question of applicable law to ICANN's jurisdiction. You are often reciting the law of the European Union and the law that binds Member States. But ICANN cannot maintain its global MS Model on the basis that it is a Member State of the EU. The answers to the questions we have posed to ICANN Legal will likely address these issues. With respect to Human Rights violations which occur within the EU, whether via the Internet or otherwise, as you know there is a forum for resolution of disputes - the European Court of Human Rights. The website you linked says: "The European Court of Human Rights considers complaints under the European Convention on Human Rights and decides whether ECHR rights have been violated. The Court interprets the Convention rights and clarifies their meaning."
ICANN is not a State and is not a court. The entire Accountability structure certified by NTIA depends on the proper operation of MS bottom-up policy-making. Please note Annex 6 states that the scope of our work includes " *Consistent with ICANN's existing processes and protocols, *consider how these new frameworks should be discussed and drafted*to ensure broad multistakeholder involvement in the process”* (bold emphasis added)
Thus, I am hopeful you are not suggesting that with respect to the draft FOI – HR, the CCWG-ACCT can just skip GAC Advice, ALAC Advice, and GNSO Guidance (see Annex A-2 to the Bylaws). My own view is that “broad multistakeholder involvement in the process” which is “consistent with ICANN’s existing processes and protocols” demands submission of the FOI-HR to the bodies within ICANN that are responsible for policy-making. (As a side note, it appears to me that if the FOI-HR is reasonably expected to result in changes to the Registry Agreement terms, that will require, at the very least, a GNSO Expedited Policy Development Process since, “consistent with ICANN’s existing processes and protocols”, Consensus Policy involving contractual commitments for registries may only be developed via either a full Policy Development Process or an Expedited Policy Development Process.)
Anne
Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com <mailto:AAikman@lrrc.com>
_______________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 700
Tucson, Arizona 85701-1611
lrrc.com
-----Original Message-----
From: Nigel Roberts [mailto:nigel@channelisles.net]
Sent: Thursday, September 08, 2016 4:44 AM
To: John Curran
Cc: Aikman-Scalese, Anne; ws2-hr@icann.org <mailto:ws2-hr@icann.org>
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
Note that these rights may be in conflict with one another in some
situations (e.g. right of free expression and right to property)
This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'.
So, 'yes'.
N.
PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right.
I would just note, that for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights,
http://www.ihrec.ie/training/guides/echr/section4therigh.html
In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003).
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Sent from my LG G4 Kindly excuse brevity and typos On 9 Sep 2016 6:46 a.m., "Nigel Roberts" <nigel@channelisles.net> wrote:
But what I am saying is, unless we find a way to ensure ICANN is seen to
have a binding commitment to respect fundamental rights, which informs and is taken into account durin policy development we have a lesser solution -- in this regard -- to government involvement.
SO: One question that keeps popping up in my mind whenever I read text similar to the one stated above is on the actual implication of whatever HR requirements we introduce into ICANN processes; Would ICANN be liable (using a legal term which I believe loosely mean; will they lose a court case when someone sue them on HR grounds) to HR requirements?. If the answer to that question is a yes then I will only say I do not think such possibility should be allowed based on the kind of work ICANN does. HR is certainly not my area of expertise but while I love that term, I find the attempt to scribble actual text for it into a technical organisation bylaw like ICANN to be strange (perhaps it's because I have a numbering community background). ICANN should respect HR through the true implementation of processes that has been setup by the various communities she serves. Anything that goes beyond such remit opens up another way to waste registrants money on legal issues, opens up ways to diminish the weight of existing policies, could hamper relationships that ICANN has with other bodies It serves. I initially sign up here as an observer but had to change in order to make occasional comments. Happy deliberation. Cheers! PS: I am copying staff so they help forward to the list incase my status has not been changed yet.
N. -- Nigel Roberts BSc LLB FBCS FRSA nigel@roberts.co.uk +44 1481 520618
On 08/09/16 20:47, Aikman-Scalese, Anne wrote:
Nigel,
I certainly appreciate your principled approach to the advancement of Human Rights and thank you for all your efforts in this regard.
Having said that , I note that the obligations you cite are obligations of the State. Something else we are tangling with here is the question of applicable law to ICANN's jurisdiction. You are often reciting the law of the European Union and the law that binds Member States. But ICANN cannot maintain its global MS Model on the basis that it is a Member State of the EU. The answers to the questions we have posed to ICANN Legal will likely address these issues. With respect to Human Rights violations which occur within the EU, whether via the Internet or otherwise, as you know there is a forum for resolution of disputes - the European Court of Human Rights. The website you linked says: "The European Court of Human Rights considers complaints under the European Convention on Human Rights and decides whether ECHR rights have been violated. The Court interprets the Convention rights and clarifies their meaning."
ICANN is not a State and is not a court. The entire Accountability structure certified by NTIA depends on the proper operation of MS bottom-up policy-making. Please note Annex 6 states that the scope of our work includes " *Consistent with ICANN's existing processes and protocols, *consider how these new frameworks should be discussed and drafted*to ensure broad multistakeholder involvement in the process”*
(bold emphasis added)
Thus, I am hopeful you are not suggesting that with respect to the draft FOI – HR, the CCWG-ACCT can just skip GAC Advice, ALAC Advice, and GNSO Guidance (see Annex A-2 to the Bylaws). My own view is that “broad multistakeholder involvement in the process” which is “consistent with ICANN’s existing processes and protocols” demands submission of the FOI-HR to the bodies within ICANN that are responsible for policy-making. (As a side note, it appears to me that if the FOI-HR is reasonably expected to result in changes to the Registry Agreement terms, that will require, at the very least, a GNSO Expedited Policy Development Process since, “consistent with ICANN’s existing processes and protocols”, Consensus Policy involving contractual commitments for registries may only be developed via either a full Policy Development Process or an Expedited Policy Development Process.)
Anne
Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com <mailto:AAikman@lrrc.com>
_______________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 700
Tucson, Arizona 85701-1611
lrrc.com
-----Original Message-----
From: Nigel Roberts [mailto:nigel@channelisles.net]
Sent: Thursday, September 08, 2016 4:44 AM
To: John Curran
Cc: Aikman-Scalese, Anne; ws2-hr@icann.org <mailto:ws2-hr@icann.org>
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
Note that these rights may be in conflict with one another in some
situations (e.g. right of free expression and right to property)
This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'.
So, 'yes'.
N.
PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right.
I would just note, that for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights,
http://www.ihrec.ie/training/guides/echr/section4therigh.html
In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003).
------------------------------------------------------------------------
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Dear Seun, You asked the following question *"Would ICANN be liable (using a legal term which I believe loosely mean; will they lose a court case when someone sue them on HR grounds) to HR requirements*?". In order to implement that , there would a need to have criteria to verify /examine the case before suing . What are those criteria? What are those various cases of human rights for which we have to establish the criteria: We are still discussing those various topics which we would refer to them as «Human Rights " they are so numerous. For each case we would have different criteria than other cases. Imagine we are discussing "Freedom of Expression” Is that freedom totally illumined? If yes, they read papers of these days how some people misuse that freedom. If not, where we have to put the bar? And what are the criteria to verify whether the thresholds set in the Bar are not exceeded. Who (which entity) and how these threshold, if any . should by verified ? If proved that the rights were not respected? do we have to first proceed with reconsideration proposing to take remedial actions or we refer the matter directly or through IRP to the court. You also referred that if ICANN does not respect THAT OR those Rights, but what do you mean by ICANN? It it the Board ? It is the staff? Is it one or several constituencies of ICANN? Is it registries, or registrars? What would the responsibilities and obligation of other entries within which registries and registrars are associated? Under which these registries and or registrar are governed. There are so many unanswered questions Regards Kavouss 2016-09-09 8:13 GMT+02:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Sent from my LG G4 Kindly excuse brevity and typos
On 9 Sep 2016 6:46 a.m., "Nigel Roberts" <nigel@channelisles.net> wrote:
But what I am saying is, unless we find a way to ensure ICANN is seen to
have a binding commitment to respect fundamental rights, which informs and is taken into account durin policy development we have a lesser solution -- in this regard -- to government involvement.
SO: One question that keeps popping up in my mind whenever I read text similar to the one stated above is on the actual implication of whatever HR requirements we introduce into ICANN processes; Would ICANN be liable (using a legal term which I believe loosely mean; will they lose a court case when someone sue them on HR grounds) to HR requirements?. If the answer to that question is a yes then I will only say I do not think such possibility should be allowed based on the kind of work ICANN does. HR is certainly not my area of expertise but while I love that term, I find the attempt to scribble actual text for it into a technical organisation bylaw like ICANN to be strange (perhaps it's because I have a numbering community background).
ICANN should respect HR through the true implementation of processes that has been setup by the various communities she serves. Anything that goes beyond such remit opens up another way to waste registrants money on legal issues, opens up ways to diminish the weight of existing policies, could hamper relationships that ICANN has with other bodies It serves.
I initially sign up here as an observer but had to change in order to make occasional comments. Happy deliberation.
Cheers! PS: I am copying staff so they help forward to the list incase my status has not been changed yet.
N. -- Nigel Roberts BSc LLB FBCS FRSA nigel@roberts.co.uk +44 1481 520618
On 08/09/16 20:47, Aikman-Scalese, Anne wrote:
Nigel,
I certainly appreciate your principled approach to the advancement of Human Rights and thank you for all your efforts in this regard.
Having said that , I note that the obligations you cite are obligations of the State. Something else we are tangling with here is the question of applicable law to ICANN's jurisdiction. You are often reciting the law of the European Union and the law that binds Member States. But ICANN cannot maintain its global MS Model on the basis that it is a Member State of the EU. The answers to the questions we have posed to ICANN Legal will likely address these issues. With respect to Human Rights violations which occur within the EU, whether via the Internet or otherwise, as you know there is a forum for resolution of disputes - the European Court of Human Rights. The website you linked says: "The European Court of Human Rights considers complaints under the European Convention on Human Rights and decides whether ECHR rights have been violated. The Court interprets the Convention rights and clarifies their meaning."
ICANN is not a State and is not a court. The entire Accountability structure certified by NTIA depends on the proper operation of MS bottom-up policy-making. Please note Annex 6 states that the scope of our work includes " *Consistent with ICANN's existing processes and protocols, *consider how these new frameworks should be discussed and drafted*to ensure broad multistakeholder involvement in the process”*
(bold emphasis added)
Thus, I am hopeful you are not suggesting that with respect to the draft FOI – HR, the CCWG-ACCT can just skip GAC Advice, ALAC Advice, and GNSO Guidance (see Annex A-2 to the Bylaws). My own view is that “broad multistakeholder involvement in the process” which is “consistent with ICANN’s existing processes and protocols” demands submission of the FOI-HR to the bodies within ICANN that are responsible for policy-making. (As a side note, it appears to me that if the FOI-HR is reasonably expected to result in changes to the Registry Agreement terms, that will require, at the very least, a GNSO Expedited Policy Development Process since, “consistent with ICANN’s existing processes and protocols”, Consensus Policy involving contractual commitments for registries may only be developed via either a full Policy Development Process or an Expedited Policy Development Process.)
Anne
Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman@lrrc.com <mailto:AAikman@lrrc.com>
_______________________________
Lewis Roca Rothgerber Christie LLP
One South Church Avenue, Suite 700
Tucson, Arizona 85701-1611
lrrc.com
-----Original Message-----
From: Nigel Roberts [mailto:nigel@channelisles.net]
Sent: Thursday, September 08, 2016 4:44 AM
To: John Curran
Cc: Aikman-Scalese, Anne; ws2-hr@icann.org <mailto:ws2-hr@icann.org>
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
Note that these rights may be in conflict with one another in some
situations (e.g. right of free expression and right to property)
This is exactly what is meant in Human Rights jurisdprudence by a 'qualfied right'.
So, 'yes'.
N.
PS: In terms of the right to life being absolute, I'd suggest we can safely ignore that debate, since nothing ICANN does, or would reasonably be expected to do, would engage that right.
I would just note, that for Council of Europe Member States, capital punishment is abolished in all circumstances, and the Art 2. right is, n European jurisprudence one of the absolute rights,
http://www.ihrec.ie/training/guides/echr/section4therigh.html
In fact, I felt privileged, during my short tenure as a legislator in an unimportant component part of the British Isles, to actually have a vote on the adoption of Protocol 13, removing the last vestige of the death penalty, around 2003).
------------------------------------------------------------
------------
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 https://mm.icann.org/mailman/listinfo/ws2-hr
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On Wed, Sep 7, 2016 at 2:17 AM, Rudolph Daniel <rudi.daniel@gmail.com> wrote:
What Anne has expressed here is pretty close to my understanding of a workable pathway.
'Any Human Rights FOI that does not EXPLICITLY recognize the MS Model of policy development is inadequate.' end quote
SO: Wouldn't it then be accurate to say the only application of HR within ICANN would be to ensure there is adequate accountability mechanism in place within ICANN processes (including policy implementation). In order words, HR within ICANN is not a set of separate terms to be respected but "respect of HR" would be achieved indirectly through adequately following other rules and procedures guiding various processes within ICANN. Regards
That is also my view currently.
Is it not possible that the GAC or some other policy development process may, when viewed under the lens of a 'respect for for human rights' p d p, is rejected or modified to bring it in line with a concensus position? rd
On Sep 6, 2016 7:18 PM, "Aikman-Scalese, Anne" <AAikman@lrrc.com> wrote:
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
_____________________________
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 *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 <ws2-hr-bounces@icann.org>] *On Behalf Of *Dr. Tatiana Tropina *Sent:* Tuesday, September 06, 2016 5:38 PM *To:* 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*
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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 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*
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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
------------------------------------------------------------ -----------------
*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@redbranchcons ulting.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
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*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
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Farzaneh
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-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* Bringing another down does not take you up - think about your action!
participants (6)
-
Aikman-Scalese, Anne -
John Curran -
Kavouss Arasteh -
Nigel Roberts -
Rudolph Daniel -
Seun Ojedeji