Dear all, I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs. All your input is of course very much appreciated. Best, Niels 1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion. 2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones. 2.2 Supplemental Report See [0] 3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet. 3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet. [0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNMo... -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks. Best, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG Dear all, I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs. All your input is of course very much appreciated. Best, Niels 1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion. 2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones. 2.2 Supplemental Report See [0] 3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet. 3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet. [0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNMo Zb4/edit?usp=sharing -- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
Hi Paul, I am a bit hesitant to add an overview of different views of members of the group, but I will try. In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on. Best, Niels On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark. As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question. Best, Paul Paul D. McGrady, Jr. policy@paulmcgrady.com -----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG Hi Paul, I am a bit hesitant to add an overview of different views of members of the group, but I will try. In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on. Best, Niels On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
First, I agree completely with Paul McGrady's statements here and in prior communications. I would note that Niels' cover note only says that 13A and 15A are "relevant", not that they apply. That is a distinction that matters. We may need to review that "consensus" in any event, since there are still concerns with 13A and 15A that may lead to non-application, even in the case of "relevance". As to "applicable law." A clear understanding of applicable law in the context of ICANN and human rights (and not just in a generic fashion) is critical to interpretation of the Bylaw. "Applicable law" is mentioned twice in the bylaw, and we can't just glide over it with a generic definition of applicable. I don't think we have a "current understanding" of applicable law -- just a very high-level introductory statement, with no meat behind it. I think this issue needs to be expressly referenced in the report -- not because it is a "different view of a member of the group," but because it is a clear open issue. We can certainly come up with a strategy for identifying "applicable law" that relates to human rights principles. (Of course, it might be helpful to decide what human rights principles we are referring to, but we can begin the applicable law task before that's dealt with). I agree with Paul that the first step is turning to ICANN legal. The second step I would suggest is research into secondary sources that discuss the linkage between human rights principles and the "applicable laws" that apply to ICANN. More generally, I would like to comment on the Supplemental Report that is attached to your email, but you have granted "view only" access. *Can you please give "comment" access to the Supplemental Report Google document?* I have a number of concerns that are best addressed in the document itself. Thanks. Greg On Wed, Oct 19, 2016 at 2:13 PM, Paul McGrady <policy@paulmcgrady.com> wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
Dear Greg,
More generally, I would like to comment on the Supplemental Report that is attached to your email, but you have granted "view only" access. _Can you please give "comment" access to the Supplemental Report Google document?_ I have a number of concerns that are best addressed in the document itself. Thanks.
We have already agreed to this document several calls ago, after three readings. I would be very hesitant to reopen the discussion on this document. Best, Niels
Greg
On Wed, Oct 19, 2016 at 2:13 PM, Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>> wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net <mailto:lists@nielstenoever.net>] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com <mailto:policy@paulmcgrady.com>>; ws2-hr@icann.org <mailto:ws2-hr@icann.org> Cc: thomas@rickert.net <mailto:thomas@rickert.net> Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote: > Thanks Niels. I would like for your summary to include notice that I > have consistently called for us to evaluate what human rights > principles already apply to ICANN as a result of applicable California > law in order to get a baseline to begin a gap analysis, but that the > request has not been acted upon by the group. Thanks. > > Best, > Paul > > > Paul D. McGrady, Jr. > policy@paulmcgrady.com <mailto:policy@paulmcgrady.com> > > > > -----Original Message----- > 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 Niels ten Oever > Sent: Tuesday, October 18, 2016 11:24 AM > To: ws2-hr@icann.org <mailto:ws2-hr@icann.org> > Subject: [Ws2-hr] Report to CCWG > > Dear all, > > I hope this email finds you well. Coming Friday is the deadline for me > to report to the CCWG Plenary on the progress of our Subgroup. I > drafted the text underneath. Your input is more than welcome before > Friday, when I will submit it to the CCWG co-chairs. > > All your input is of course very much appreciated. > > Best, > > Niels > > 1. Executive Summary > The CCWG WS2 Human Rights Subgroup has documented the historical > context of the discussions on ICANNs human rights bylaw, which > together with the CCWG report (especially Annex 6 and 12) form it's > scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. > The subgroup is currently preparing a Framework of Interpretation > which in due time will be presented to the CCWG plenary for discussion. > > 2. Description of the Issue > 2.1 Current State of Play > The CCWG WS2 Human Rights Subgroup started of with providing an > overview of the discussions and agreements as they were made during > CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN > Guiding Principles on Business and Human Rights (UNGPs), and their > relevance and applicability for ICANN. While there was consensus that > some principles were relevant for the development for a Framework of > Interpretation (such as 13a and 15a), it was also recognized that the > UNGPs have not been designed with an organization like ICANN in mind. > Therefore a drafting team is currently iteratively designing a draft > Framework of Interpretation which is being discussed in weekly calls. > It is expected, that at this rate, the subgroup will be able to achieve the set milestones. > > 2.2 Supplemental Report > See [0] > > 3 Recommendation > 3.1 Requirements for Recommendation > We haven't reached consensus on a recommendation yet. > > 3.2 Rationale for Recommendation > We haven't reached consensus on a recommendation yet. > > [0] > https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ <https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_> > M_aNMo > Zb4/edit?usp=sharing > > -- > Niels ten Oever > Head of Digital > > Article 19 > www.article19.org <http://www.article19.org> > > PGP fingerprint 8D9F C567 BEE4 A431 56C4 > 678B 08B5 A0F2 636D 68E9 > _______________________________________________ > Ws2-hr mailing list > Ws2-hr@icann.org <mailto:Ws2-hr@icann.org> > https://mm.icann.org/mailman/listinfo/ws2-hr <https://mm.icann.org/mailman/listinfo/ws2-hr> >
-- Niels ten Oever Head of Digital
Article 19 www.article19.org <http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
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-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Paul This is where you and I part company. On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California). Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof. Avri had it right. She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting. HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . . whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story. 'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by. And ICANN has, it appears, done so. The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58. From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law. Unless someone wishes to advance a different legal authority for "applicable law". On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
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-- Niels ten Oever Head of Digital
Article 19 www.article19.org
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All the more reason that we need to be clear about what "applicable law" means and how it applies in this context. On Wed, Oct 19, 2016 at 2:48 PM, Nigel Roberts <nigel@channelisles.net> wrote:
Paul
This is where you and I part company.
On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California).
Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof.
Avri had it right.
She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting.
HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . .
whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story.
'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by.
And ICANN has, it appears, done so.
The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law.
Unless someone wishes to advance a different legal authority for "applicable law".
On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that
certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human
Rights Bylaw as intended output.
The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve
the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
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Indeed. In fact I think we are wasting our time if we don't do that. But I find it amusing and curious that the CCWG would include a term in a proposed by-law and only AFTER transition, seek to understand its true construction. What if the correct interpretiation completely defeats any obligation upon ICANN to respect human rights? On 19/10/16 19:51, Greg Shatan wrote:
All the more reason that we need to be clear about what "applicable law" means and how it applies in this context.
Thanks Nigel. I guess I just don't understand how the human rights obligations that ICANN has are no longer applicable law just because they happen to be applicable under the law. Sorry for not being able to get on board with the circular argument and dismissing the body of laws that actually already apply to ICANN before we go out looking for gap fillers. What you appear to be proposing is that we build a wall out of spackle without looking to see if a wall already exists and seeing if it might have some holes to patch. I'm not suggesting (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG so that they can decide if they want a pile of spackle or a patch wall at the end of our process. Best, Paul -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, October 19, 2016 1:49 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] Report to CCWG Paul This is where you and I part company. On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California). Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof. Avri had it right. She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting. HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . . whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story. 'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by. And ICANN has, it appears, done so. The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58. From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law. Unless someone wishes to advance a different legal authority for "applicable law". On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
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What applicable law requires a private company to respect free expression? None. On 19/10/16 19:57, Paul McGrady wrote:
Thanks Nigel.
I guess I just don't understand how the human rights obligations that ICANN has are no longer applicable law just because they happen to be applicable under the law. Sorry for not being able to get on board with the circular argument and dismissing the body of laws that actually already apply to ICANN before we go out looking for gap fillers. What you appear to be proposing is that we build a wall out of spackle without looking to see if a wall already exists and seeing if it might have some holes to patch.
I'm not suggesting (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG so that they can decide if they want a pile of spackle or a patch wall at the end of our process.
Best, Paul
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, October 19, 2016 1:49 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] Report to CCWG
Paul
This is where you and I part company.
On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California).
Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof.
Avri had it right.
She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting.
HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . .
whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story.
'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by.
And ICANN has, it appears, done so.
The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law.
Unless someone wishes to advance a different legal authority for "applicable law".
On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
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Thanks Nigel. So from this I take it that you would like for us to rely on your conclusory statement rather than asking ICANN Legal how the free speech components of California's constitution affect the ICANN runs its business? I'm sorry that I can't willingly go along with developing a framework based on ignorance of what is already out there. Again, I'm not asking that (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG. Best, Paul -----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Wednesday, October 19, 2016 2:50 PM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG What applicable law requires a private company to respect free expression? None. On 19/10/16 19:57, Paul McGrady wrote:
Thanks Nigel.
I guess I just don't understand how the human rights obligations that ICANN has are no longer applicable law just because they happen to be applicable under the law. Sorry for not being able to get on board with the circular argument and dismissing the body of laws that actually already apply to ICANN before we go out looking for gap fillers. What you appear to be proposing is that we build a wall out of spackle without looking to see if a wall already exists and seeing if it might have some holes to patch.
I'm not suggesting (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG so that they can decide if they want a pile of spackle or a patch wall at the end of our process.
Best, Paul
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, October 19, 2016 1:49 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] Report to CCWG
Paul
This is where you and I part company.
On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California).
Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof.
Avri had it right.
She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting.
HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . .
whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story.
'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by.
And ICANN has, it appears, done so.
The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law.
Unless someone wishes to advance a different legal authority for "applicable law".
On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B 1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
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I agree with this analysis of Paul McGrady and Nigel Roberts. ICANN has to respect laws in the countries it is operating. Human rights standards differ and it is not the obligation of ICANN to enforce these. This is the role of human rights bodies. BUT: ICANN is operating also at the international level (as some sui generis organisation) and as such it has accepted to respect international human rights law (e.g. the Universal Declaration on Human Rights, the human right conventions, without any reservations, with a sufficiently strong ratification status, e.g. more than 80 countries etc.). ICANN has also to respect regional human rights law (e.g. European Convention on Human Rights, American Convention on Human Rights) and other instruments like the Cairo Declaration on Human Rights in Islam (CDHRI). Thus: ICANN as an organisation respects human rights, maybe also in some ethical version (like the "Ruggie Principles", but I remain sceptical). As long as local jurisdictions respect ICANN's autonomy, it is fine. Otherwise, local jurisdiction superposes ICANN's obligations. ICANN may report to human rights bodies and they have to take on this issue. Best regards, Erich Schweighofer -----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul McGrady Gesendet: Mittwoch, 19. Oktober 2016 22:20 An: 'Nigel Roberts'; ws2-hr@icann.org Cc: thomas@rickert.net Betreff: Re: [Ws2-hr] Report to CCWG Thanks Nigel. So from this I take it that you would like for us to rely on your conclusory statement rather than asking ICANN Legal how the free speech components of California's constitution affect the ICANN runs its business? I'm sorry that I can't willingly go along with developing a framework based on ignorance of what is already out there. Again, I'm not asking that (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG. Best, Paul -----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Wednesday, October 19, 2016 2:50 PM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG What applicable law requires a private company to respect free expression? None. On 19/10/16 19:57, Paul McGrady wrote:
Thanks Nigel.
I guess I just don't understand how the human rights obligations that ICANN has are no longer applicable law just because they happen to be applicable under the law. Sorry for not being able to get on board with the circular argument and dismissing the body of laws that actually already apply to ICANN before we go out looking for gap fillers. What you appear to be proposing is that we build a wall out of spackle without looking to see if a wall already exists and seeing if it might have some holes to patch.
I'm not suggesting (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG so that they can decide if they want a pile of spackle or a patch wall at the end of our process.
Best, Paul
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, October 19, 2016 1:49 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] Report to CCWG
Paul
This is where you and I part company.
On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California).
Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof.
Avri had it right.
She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting.
HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . .
whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story.
'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by.
And ICANN has, it appears, done so.
The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law.
Unless someone wishes to advance a different legal authority for "applicable law".
On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B 1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
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For the avoidance of doubt, I don't think that Paul and I are on the same page. But that notwithstanding, I pretty much concur with Erich's comment. On 19/10/16 23:32, Schweighofer Erich wrote:
I agree with this analysis of Paul McGrady and Nigel Roberts. ICANN has to respect laws in the countries it is operating. Human rights standards differ and it is not the obligation of ICANN to enforce these. This is the role of human rights bodies. BUT: ICANN is operating also at the international level (as some sui generis organisation) and as such it has accepted to respect international human rights law (e.g. the Universal Declaration on Human Rights, the human right conventions, without any reservations, with a sufficiently strong ratification status, e.g. more than 80 countries etc.). ICANN has also to respect regional human rights law (e.g. European Convention on Human Rights, American Convention on Human Rights) and other instruments like the Cairo Declaration on Human Rights in Islam (CDHRI). Thus: ICANN as an organisation respects human rights, maybe also in some ethical version (like the "Ruggie Principles", but I remain sceptical). As long as local jurisdictions respect ICANN's autonomy, it is fine. Otherwise, local jurisdiction superposes ICANN's obligations. ICANN may report to human rights bodies and they have to take on this issue.
Best regards, Erich Schweighofer
-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul McGrady
Dear Niels, I think we have now sufficient elements to find our ways, Look at Nile, Erich, MC Grady, Grec and those others who have exchanged messages on this issue. I suggest you to kindly look at them and take common elements of those messages and collate them to together to create a working document, Kavouss 2016-10-20 0:32 GMT+02:00 Schweighofer Erich < erich.schweighofer@univie.ac.at>:
I agree with this analysis of Paul McGrady and Nigel Roberts. ICANN has to respect laws in the countries it is operating. Human rights standards differ and it is not the obligation of ICANN to enforce these. This is the role of human rights bodies. BUT: ICANN is operating also at the international level (as some sui generis organisation) and as such it has accepted to respect international human rights law (e.g. the Universal Declaration on Human Rights, the human right conventions, without any reservations, with a sufficiently strong ratification status, e.g. more than 80 countries etc.). ICANN has also to respect regional human rights law (e.g. European Convention on Human Rights, American Convention on Human Rights) and other instruments like the Cairo Declaration on Human Rights in Islam (CDHRI). Thus: ICANN as an organisation respects human rights, maybe also in some ethical version (like the "Ruggie Principles", but I remain sceptical). As long as local jurisdictions respect ICANN's autonomy, it is fine. Otherwise, local jurisdiction superposes ICANN's obligations. ICANN may report to human rights bodies and they have to take on this issue.
Best regards, Erich Schweighofer
-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Paul McGrady Gesendet: Mittwoch, 19. Oktober 2016 22:20 An: 'Nigel Roberts'; ws2-hr@icann.org Cc: thomas@rickert.net Betreff: Re: [Ws2-hr] Report to CCWG
Thanks Nigel. So from this I take it that you would like for us to rely on your conclusory statement rather than asking ICANN Legal how the free speech components of California's constitution affect the ICANN runs its business? I'm sorry that I can't willingly go along with developing a framework based on ignorance of what is already out there.
Again, I'm not asking that (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG.
Best, Paul
-----Original Message----- From: Nigel Roberts [mailto:nigel@channelisles.net] Sent: Wednesday, October 19, 2016 2:50 PM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
What applicable law requires a private company to respect free expression?
None.
On 19/10/16 19:57, Paul McGrady wrote:
Thanks Nigel.
I guess I just don't understand how the human rights obligations that ICANN has are no longer applicable law just because they happen to be applicable under the law. Sorry for not being able to get on board with the circular argument and dismissing the body of laws that actually already apply to ICANN before we go out looking for gap fillers. What you appear to be proposing is that we build a wall out of spackle without looking to see if a wall already exists and seeing if it might have some holes to patch.
I'm not suggesting (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG so that they can decide if they want a pile of spackle or a patch wall at the end of our process.
Best, Paul
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, October 19, 2016 1:49 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] Report to CCWG
Paul
This is where you and I part company.
On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California).
Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof.
Avri had it right.
She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting.
HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . .
whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story.
'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by.
And ICANN has, it appears, done so.
The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law.
Unless someone wishes to advance a different legal authority for "applicable law".
On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B 1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
_______________________________________________ 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
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Dear All, IO sent a personal message to co-chair and expressed my frustration and disappointment on the way that some people have created a closed circuit around the subject which trins around itself until everybody would be fully exhausted then we certainly have consensus by exhaustion tend to agree with Nigle when he argued Quote "*HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional "* We are facing the same situation for Jurisdiction . The end results would be status quo Regards Kavouss 2016-10-19 21:49 GMT+02:00 Nigel Roberts <nigel@channelisles.net>:
What applicable law requires a private company to respect free expression?
None.
On 19/10/16 19:57, Paul McGrady wrote:
Thanks Nigel.
I guess I just don't understand how the human rights obligations that ICANN has are no longer applicable law just because they happen to be applicable under the law. Sorry for not being able to get on board with the circular argument and dismissing the body of laws that actually already apply to ICANN before we go out looking for gap fillers. What you appear to be proposing is that we build a wall out of spackle without looking to see if a wall already exists and seeing if it might have some holes to patch.
I'm not suggesting (for today's purposes) that everyone agree with me, I'm just asking that Niels include my objection to this unfruitful approach in his report to the CCWG so that they can decide if they want a pile of spackle or a patch wall at the end of our process.
Best, Paul
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Wednesday, October 19, 2016 1:49 PM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] Report to CCWG
Paul
This is where you and I part company.
On a strict construction, there is no applicable law which says ICANN has to respect any of the human rights. The law just says "ICANN has to follow the law" (e.g of California).
Of course this may include obligations that the the State (i.e the United States) and the state (i.e. California) place on private parties as a result of its own obligation to respect human rights, but this does not engage ICANN with fundamental rights PER SE, but with the domestic implementation thereof.
Avri had it right.
She said that 'all this ACTUALLY means is that ICANN must follow the law', if I am not misquoting.
HOWEVER, as I have repeatedly reminded everyone, and I am beginning to feel that the lack of dealing with it is intentional . . .
whilst true, (and the reason I argued strongly against that formulation in WS1) that is not /necessarily/ the end of the story.
'Applicable law' can include international law (which does not normally bind domestically) that ICANN voluntarily agrees to be bound by.
And ICANN has, it appears, done so.
The analysis I prefer, which engages ICANN squarely in fundamental rights obligations is that of the learned Panellist, Judge Schwbel in ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in paragraphs 57-58.
From which it is clear that ICANN's founders have bound ICANN in law (i.e. California law) to respect international law.
Unless someone wishes to advance a different legal authority for "applicable law".
On 19/10/16 19:13, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews
of
the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know
whether
or not they are already subsumed by or preempted by California State law.
I
hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable
law.
We simply have no hope at hitting the target if we insist on having
blinders
on. Not telling the Plenary CCWG that we have decided to put on blinders
is
an important thing for them to know so that they can either tell us to
take
off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of
the
group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and
in
conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human
Rights Bylaw as intended output.
The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve
the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
_______________________________________________ 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
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Dear Paul, I completely agree we should have a clear definition of applicable law, which is what we are working on, and about which we also asked ICANN legal a question in the call before last. Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer to that. Of course states that sign on to different treaties should reflect those commitments in their bodies of law, but there is no 1:1 relation between specific laws and specific human rights, and making a genealogy of that would seem almost impossible, or at least a Herculean task. Especially since it is hard to estimate what laws, policies and regulations all potentially could have an impact on rights such as freedom of expression, freedom of association, etc. So I am having a hard time making this link, but maybe I am missing something. All the best, Niels On 10/19/2016 08:13 PM, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Niels is 100% correct in this analysis. (With the seasoning of Judge Schwebel's analysis of the ICANN M&A.) On 20/10/16 10:53, Niels ten Oever wrote:
Dear Paul,
I completely agree we should have a clear definition of applicable law, which is what we are working on, and about which we also asked ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer to that. Of course states that sign on to different treaties should reflect those commitments in their bodies of law, but there is no 1:1 relation between specific laws and specific human rights, and making a genealogy of that would seem almost impossible, or at least a Herculean task. Especially since it is hard to estimate what laws, policies and regulations all potentially could have an impact on rights such as freedom of expression, freedom of association, etc. So I am having a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
Dear Paul, I think we can now answer some of your questions. Sidley already made a 'Response to Questions Regarding ICANN’s Human Rights Obligations' in July 2015, you can find it attached. Thanks a lot to Sabine Meyer for digging this up. Best, Niels On 10/20/2016 11:53 AM, Niels ten Oever wrote:
Dear Paul,
I completely agree we should have a clear definition of applicable law, which is what we are working on, and about which we also asked ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer to that. Of course states that sign on to different treaties should reflect those commitments in their bodies of law, but there is no 1:1 relation between specific laws and specific human rights, and making a genealogy of that would seem almost impossible, or at least a Herculean task. Especially since it is hard to estimate what laws, policies and regulations all potentially could have an impact on rights such as freedom of expression, freedom of association, etc. So I am having a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
-- Niels ten Oever Head of Digital Article 19 www.article19.org PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
thanks Niels and Sabine a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply... best Jorge Von meinem iPhone gesendet
Am 21.10.2016 um 11:06 schrieb Niels ten Oever <lists@nielstenoever.net>:
Dear Paul,
I think we can now answer some of your questions. Sidley already made a 'Response to Questions Regarding ICANN’s Human Rights Obligations' in July 2015, you can find it attached.
Thanks a lot to Sabine Meyer for digging this up.
Best,
Niels
On 10/20/2016 11:53 AM, Niels ten Oever wrote: Dear Paul,
I completely agree we should have a clear definition of applicable law, which is what we are working on, and about which we also asked ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer to that. Of course states that sign on to different treaties should reflect those commitments in their bodies of law, but there is no 1:1 relation between specific laws and specific human rights, and making a genealogy of that would seem almost impossible, or at least a Herculean task. Especially since it is hard to estimate what laws, policies and regulations all potentially could have an impact on rights such as freedom of expression, freedom of association, etc. So I am having a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote: Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote: Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 <Memo_ ICANN Human Rights Obligations.docx> _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
True. It seems that Sidley has used another concept of applicable law than we currently have in our definition. Therefore it will be very interesting to see the answers of ICANN legal to our questions re: our definition. Best, Niels On Fri, 2016-10-21 at 09:11 +0000, Jorge.Cancio@bakom.admin.ch wrote:
thanks Niels and Sabine
a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply...
best
Jorge
Von meinem iPhone gesendet
Am 21.10.2016 um 11:06 schrieb Niels ten Oever <lists@nielstenoever.net>:
Dear Paul,
I think we can now answer some of your questions. Sidley already made a 'Response to Questions Regarding ICANN’s Human Rights Obligations' in July 2015, you can find it attached.
Thanks a lot to Sabine Meyer for digging this up.
Best,
Niels
On 10/20/2016 11:53 AM, Niels ten Oever wrote: Dear Paul,
I completely agree we should have a clear definition of applicable law, which is what we are working on, and about which we also asked ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer to that. Of course states that sign on to different treaties should reflect those commitments in their bodies of law, but there is no 1:1 relation between specific laws and specific human rights, and making a genealogy of that would seem almost impossible, or at least a Herculean task. Especially since it is hard to estimate what laws, policies and regulations all potentially could have an impact on rights such as freedom of expression, freedom of association, etc. So I am having a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote: Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote: Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 <Memo_ ICANN Human Rights Obligations.docx> _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
Reading the Sidley note on applicable law , I now remember it well. It may be a guide in some aspects, but I was of the opinion (sorry if I am repeating) that applicable law is to be defined in a post contract world where ICANN operates on an international stage and we see that the term 'applicable law' does have some rank in private international law. I am no lawyer, so I have to be happy to take advice on ICANN, s relationship to the international law. rd On Oct 21, 2016 7:35 AM, "Niels ten Oever" <lists@nielstenoever.net> wrote:
True. It seems that Sidley has used another concept of applicable law than we currently have in our definition. Therefore it will be very interesting to see the answers of ICANN legal to our questions re: our definition.
Best,
Niels
On Fri, 2016-10-21 at 09:11 +0000, Jorge.Cancio@bakom.admin.ch wrote:
thanks Niels and Sabine
a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply...
best
Jorge
Von meinem iPhone gesendet
Am 21.10.2016 um 11:06 schrieb Niels ten Oever < lists@nielstenoever.net>:
Dear Paul,
I think we can now answer some of your questions. Sidley already made a 'Response to Questions Regarding ICANN’s Human Rights Obligations' in July 2015, you can find it attached.
Thanks a lot to Sabine Meyer for digging this up.
Best,
Niels
On 10/20/2016 11:53 AM, Niels ten Oever wrote: Dear Paul,
I completely agree we should have a clear definition of applicable law, which is what we are working on, and about which we also asked ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer to that. Of course states that sign on to different treaties should reflect those commitments in their bodies of law, but there is no 1:1 relation between specific laws and specific human rights, and making a genealogy of that would seem almost impossible, or at least a Herculean task. Especially since it is hard to estimate what laws, policies and regulations all potentially could have an impact on rights such as freedom of expression, freedom of association, etc. So I am having a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote: Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote: Thanks Niels. I would like for your summary to include notice that I have consistently called for us to evaluate what human rights principles already apply to ICANN as a result of applicable California law in order to get a baseline to begin a gap analysis, but that the request has not been acted upon by the group. Thanks.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Tuesday, October 18, 2016 11:24 AM To: ws2-hr@icann.org Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline for me to report to the CCWG Plenary on the progress of our Subgroup. I drafted the text underneath. Your input is more than welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary The CCWG WS2 Human Rights Subgroup has documented the historical context of the discussions on ICANNs human rights bylaw, which together with the CCWG report (especially Annex 6 and 12) form it's scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. The subgroup is currently preparing a Framework of Interpretation which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue 2.1 Current State of Play The CCWG WS2 Human Rights Subgroup started of with providing an overview of the discussions and agreements as they were made during CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN Guiding Principles on Business and Human Rights (UNGPs), and their relevance and applicability for ICANN. While there was consensus that some principles were relevant for the development for a Framework of Interpretation (such as 13a and 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind. Therefore a drafting team is currently iteratively designing a draft Framework of Interpretation which is being discussed in weekly calls. It is expected, that at this rate, the subgroup will be able to achieve the set milestones.
2.2 Supplemental Report See [0]
3 Recommendation 3.1 Requirements for Recommendation We haven't reached consensus on a recommendation yet.
3.2 Rationale for Recommendation We haven't reached consensus on a recommendation yet.
[0] https://docs.google.com/document/d/1rwpw9aSAqboRO2_ rNkjMVJPOmYwmdr5B1_ M_aNMo Zb4/edit?usp=sharing
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 <Memo_ ICANN Human Rights Obligations.docx> _______________________________________________ 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
Dear Niels I do not find Sidley Note regarding applicable law. May you pls forward it to me Regards Kavouss araasteh Sent from my iPhone
On 21 Oct 2016, at 23:39, Rudolph Daniel <rudi.daniel@gmail.com> wrote:
Reading the Sidley note on applicable law , I now remember it well. It may be a guide in some aspects, but I was of the opinion (sorry if I am repeating) that applicable law is to be defined in a post contract world where ICANN operates on an international stage and we see that the term 'applicable law' does have some rank in private international law. I am no lawyer, so I have to be happy to take advice on ICANN, s relationship to the international law. rd
On Oct 21, 2016 7:35 AM, "Niels ten Oever" <lists@nielstenoever.net> wrote: True. It seems that Sidley has used another concept of applicable law than we currently have in our definition. Therefore it will be very interesting to see the answers of ICANN legal to our questions re: our definition.
Best,
Niels
On Fri, 2016-10-21 at 09:11 +0000, Jorge.Cancio@bakom.admin.ch wrote:
thanks Niels and Sabine
a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply...
best
Jorge
Von meinem iPhone gesendet
Am 21.10.2016 um 11:06 schrieb Niels ten Oever <lists@nielstenoever.net>:
Dear Paul,
I think we can now answer some of your questions. Sidley already made a 'Response to Questions Regarding ICANN’s Human Rights Obligations' in July 2015, you can find it attached.
Thanks a lot to Sabine Meyer for digging this up.
Best,
Niels
On 10/20/2016 11:53 AM, Niels ten Oever wrote: Dear Paul,
I completely agree we should have a clear definition of applicable law, which is what we are working on, and about which we also asked ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer to that. Of course states that sign on to different treaties should reflect those commitments in their bodies of law, but there is no 1:1 relation between specific laws and specific human rights, and making a genealogy of that would seem almost impossible, or at least a Herculean task. Especially since it is hard to estimate what laws, policies and regulations all potentially could have an impact on rights such as freedom of expression, freedom of association, etc. So I am having a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote: Thanks Niels. By saying the group has reached some sort of consensus that certain Ruggie principals may apply, you are already including overviews of the various views of the members of the group. I, for one, still have no idea if any of the Ruggie principals would apply since I do not know whether or not they are already subsumed by or preempted by California State law. I hope your summary will be complete enough to include that at least one person in the group believes we out to start with what applicable law is already in place before we begin opining on whether or not third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law. We simply have no hope at hitting the target if we insist on having blinders on. Not telling the Plenary CCWG that we have decided to put on blinders is an important thing for them to know so that they can either tell us to take off the blinders and look first at what human rights requirements already exist under applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as the first (among many) times I have brought up this subject. Ask ICANN Legal what Human Rights laws already apply to the organization. They have been operating in California for some time now and they already know the answer to this question.
Best, Paul
Paul D. McGrady, Jr. policy@paulmcgrady.com
-----Original Message----- From: Niels ten Oever [mailto:lists@nielstenoever.net] Sent: Wednesday, October 19, 2016 11:24 AM To: Paul McGrady <policy@paulmcgrady.com>; ws2-hr@icann.org Cc: thomas@rickert.net Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of members of the group, but I will try.
In the meantime I would still be very interested to hear from you how you think we could approach this, with the limited resources of our group and in conjunction with the current understanding of applicable law we're working on.
Best,
Niels
> On 10/19/2016 05:31 PM, Paul McGrady wrote: > Thanks Niels. I would like for your summary to include notice that I > have consistently called for us to evaluate what human rights > principles already apply to ICANN as a result of applicable California > law in order to get a baseline to begin a gap analysis, but that the > request has not been acted upon by the group. Thanks. > > Best, > Paul > > > Paul D. McGrady, Jr. > policy@paulmcgrady.com > > > > -----Original Message----- > From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On > Behalf Of Niels ten Oever > Sent: Tuesday, October 18, 2016 11:24 AM > To: ws2-hr@icann.org > Subject: [Ws2-hr] Report to CCWG > > Dear all, > > I hope this email finds you well. Coming Friday is the deadline for me > to report to the CCWG Plenary on the progress of our Subgroup. I > drafted the text underneath. Your input is more than welcome before > Friday, when I will submit it to the CCWG co-chairs. > > All your input is of course very much appreciated. > > Best, > > Niels > > 1. Executive Summary > The CCWG WS2 Human Rights Subgroup has documented the historical > context of the discussions on ICANNs human rights bylaw, which > together with the CCWG report (especially Annex 6 and 12) form it's > scope of discussion, with a Framework of Interpretation of the Human Rights Bylaw as intended output. > The subgroup is currently preparing a Framework of Interpretation > which in due time will be presented to the CCWG plenary for discussion. > > 2. Description of the Issue > 2.1 Current State of Play > The CCWG WS2 Human Rights Subgroup started of with providing an > overview of the discussions and agreements as they were made during > CCWG Workstream 1 [0]. Subsequently the Subgroup has analyzed the UN > Guiding Principles on Business and Human Rights (UNGPs), and their > relevance and applicability for ICANN. While there was consensus that > some principles were relevant for the development for a Framework of > Interpretation (such as 13a and 15a), it was also recognized that the > UNGPs have not been designed with an organization like ICANN in mind. > Therefore a drafting team is currently iteratively designing a draft > Framework of Interpretation which is being discussed in weekly calls. > It is expected, that at this rate, the subgroup will be able to achieve the set milestones. > > 2.2 Supplemental Report > See [0] > > 3 Recommendation > 3.1 Requirements for Recommendation > We haven't reached consensus on a recommendation yet. > > 3.2 Rationale for Recommendation > We haven't reached consensus on a recommendation yet. > > [0] > https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmdr5B1_ > M_aNMo > Zb4/edit?usp=sharing > > -- > Niels ten Oever > Head of Digital > > Article 19 > www.article19.org > > PGP fingerprint 8D9F C567 BEE4 A431 56C4 > 678B 08B5 A0F2 636D 68E9 > _______________________________________________ > Ws2-hr mailing list > Ws2-hr@icann.org > https://mm.icann.org/mailman/listinfo/ws2-hr
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9
-- Niels ten Oever Head of Digital
Article 19 www.article19.org
PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 <Memo_ ICANN Human Rights Obligations.docx> _______________________________________________ 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
_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr
Certainly there would be labor laws that apply to ICANN employees stationed in countries outside the U.S. which laws will have certain Human Rights implications. I think it will be important for our group to distinguish between ICANN internal processes which are subject to "applicable law" and the portion of the By-Laws that discusses international principles of Human Rights which may apply via the FOI to the extent they are within the scope of ICANN's limited mission. In this regard, I read "applicable law" to have the same meaning as "governing law." We will have to be quite careful about taking an approach that says that ICANN is bound by foreign laws on Human Rights. For example, having an office in Brussels does not automatically mean ICANN is subject to every EU statute on Human Rights, in particular because those statutes we refer to govern acts of States. It appears that since we all recognize how powerful the Internet is, we want to bind ICANN in the way we bind member States but that is not within the scope or meaning of the By-Law. For example, the fact that certain social media operators have agreed to sign the European Commission "Code of Conduct Countering Illegal Hate Speech Online" does not mean that ICANN should voluntarily require registry operators to comply with that Code. I think the reason this notion scares me so much is that it is quite likely that King George would have characterized Patrick Henry's speech about the tyranny of the King of England over the colonies (and the sole state-sponsored religion allowed during his reign) as impermissible hate speech. I find the provisions in the Code for appointment of individuals to monitor this online speech and provide notices to effect rapid takedowns of matter which is purely speech quite disturbing indeed. (On a level with Candidate Trump's intention to ban Muslims from immigrating to the U.S. when the U.S. is in fact a country founded principally on the notion of freedom of religion and assembly and has more descendants of immigrants than descendants of indigenous peoples.) What would be most useful is for ICANN Legal to not only advise as to U.S. laws binding the non-profit but also the laws of the countries where ICANN has offices and how those laws may bind a foreign (California) non-profit public benefit corporation. Such foreign laws would still be in the definition of "applicable law" or "governing law". After that we can move on to principles that do not constitute "applicable law." I certainly agree there may be "applicable law" with Human Rights implications that applies to ICANN offices outside the U.S. Such laws are quite likely to apply to ICANN Operations and not at all to the broad approach taken in the Ruggie Principles to "all its business relationships". I support the relevance of Ruggie Principle 18(b) to our work on drafting an HR-FOI. (As a reminder, Principle 18 is pasted below.) This particular Principle is exactly what ICANN should be doing going forward in the process of respecting Human Rights consistent with existing processes and protocols within ICANN as described in Annex 6, including, but not limited to, the PDP process. I believe the term "respecting" means to fully consider Human Rights principles, applicable U.S. laws (and foreign laws that apply to foreign offices) and finally, performing the balancing of Core Values that must occur pursuant to the By-Laws in each issue that is being considered. This balancing act is not to be done by the WS2 HR-FOI Subgroup and considerations will be different (and weighed and balanced differently) depending on the issue at hand. This is why it is critical for the FOI-HR to expressly recognize and affirm the Policy Development Process in the bottom-up MultiStakeholder Model. We must provide an FOI-HR that 1. puts a priority on compliance with applicable laws. This is “baseline”. 2. Does not attempt to address each scenario or issue that could arise, but rather (in the absence of a direct legal obligation via governing law) creates a Framework for a further analysis via the Policy Development Process. (We are not supposed to be making policy or deciding on some new "applicable law" in WS2 FOI- HR.) The definition of "applicable law" is just that. 3. Will lead to joint community consensus and action because when we get beyond the operation of "applicable law", no contracted party may be bound by a provision that is not developed pursuant to a Policy Development Process. (Yes folks, this is in the Registry Agreement and it is known as “Consensus Policy.”) 4. provides helpful suggestions to the policy-making bodies (and the Board) as to how to perform the act of balancing Core Values, including balancing various Human Rights principles in relation to one another. [cid:image001.png@01D23527.78182290] Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image004.png@01D2352A.7FC410A0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Friday, October 21, 2016 4:35 AM To: Jorge.Cancio@bakom.admin.ch Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Report to CCWG True. It seems that Sidley has used another concept of applicable law than we currently have in our definition. Therefore it will be very interesting to see the answers of ICANN legal to our questions re: our definition. Best, Niels On Fri, 2016-10-21 at 09:11 +0000, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote:
thanks Niels and Sabine
a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply...
best
Jorge
Von meinem iPhone gesendet
Am 21.10.2016 um 11:06 schrieb Niels ten Oever <lists@nielstenoever.net<mailto:lists@nielstenoever.net>>:
Dear Paul,
I think we can now answer some of your questions. Sidley already
made a 'Response to Questions Regarding ICANN’s Human Rights
Obligations' in July 2015, you can find it attached.
Thanks a lot to Sabine Meyer for digging this up.
Best,
Niels
On 10/20/2016 11:53 AM, Niels ten Oever wrote:
Dear Paul,
I completely agree we should have a clear definition of applicable
law, which is what we are working on, and about which we also asked
ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what
Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer
to that. Of course states that sign on to different treaties should
reflect those commitments in their bodies of law, but there is no
1:1 relation between specific laws and specific human rights, and
making a genealogy of that would seem almost impossible, or at least a Herculean task.
Especially since it is hard to estimate what laws, policies and
regulations all potentially could have an impact on rights such as
freedom of expression, freedom of association, etc. So I am having
a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of
consensus that certain Ruggie principals may apply, you are
already including overviews of the various views of the members of
the group. I, for one, still have no idea if any of the Ruggie
principals would apply since I do not know whether or not they are
already subsumed by or preempted by California State law. I hope
your summary will be complete enough to include that at least one
person in the group believes we out to start with what applicable
law is already in place before we begin opining on whether or not
third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law.
We simply have no hope at hitting the target if we insist on
having blinders on. Not telling the Plenary CCWG that we have
decided to put on blinders is an important thing for them to know
so that they can either tell us to take off the blinders and look
first at what human rights requirements already exist under
applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as
the first (among many) times I have brought up this subject. Ask
ICANN Legal what Human Rights laws already apply to the
organization. They have been operating in California for some
time now and they already know the answer to this question.
Best,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>
-----Original Message-----
From: Niels ten Oever [mailto:lists@nielstenoever.net]
Sent: Wednesday, October 19, 2016 11:24 AM
To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; ws2-hr@icann.org<mailto:ws2-hr@icann.org>
Cc: thomas@rickert.net<mailto:thomas@rickert.net>
Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of
members of the group, but I will try.
In the meantime I would still be very interested to hear from you
how you think we could approach this, with the limited resources
of our group and in conjunction with the current understanding of
applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice
that I have consistently called for us to evaluate what human
rights principles already apply to ICANN as a result of
applicable California law in order to get a baseline to begin a
gap analysis, but that the request has not been acted upon by the group. Thanks.
Best,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>
-----Original Message-----
From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org]
On Behalf Of Niels ten Oever
Sent: Tuesday, October 18, 2016 11:24 AM
To: ws2-hr@icann.org<mailto:ws2-hr@icann.org>
Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline
for me to report to the CCWG Plenary on the progress of our
Subgroup. I drafted the text underneath. Your input is more than
welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary
The CCWG WS2 Human Rights Subgroup has documented the historical
context of the discussions on ICANNs human rights bylaw, which
together with the CCWG report (especially Annex 6 and 12) form
it's scope of discussion, with a Framework of Interpretation of
the Human
Rights Bylaw as intended output.
The subgroup is currently preparing a Framework of Interpretation
which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue
2.1 Current State of Play
The CCWG WS2 Human Rights Subgroup started of with providing an
overview of the discussions and agreements as they were made
during CCWG Workstream 1 [0]. Subsequently the Subgroup has
analyzed the UN Guiding Principles on Business and Human Rights
(UNGPs), and their relevance and applicability for ICANN. While
there was consensus that some principles were relevant for the
development for a Framework of Interpretation (such as 13a and
15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind.
Therefore a drafting team is currently iteratively designing a
draft Framework of Interpretation which is being discussed in weekly calls.
It is expected, that at this rate, the subgroup will be able to
achieve
the set milestones.
2.2 Supplemental Report
See [0]
3 Recommendation
3.1 Requirements for Recommendation We haven't reached consensus
on a recommendation yet.
3.2 Rationale for Recommendation
We haven't reached consensus on a recommendation yet.
[0]
https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmd
r5B1_
M_aNMo
Zb4/edit?usp=sharing
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org<http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4
678B 08B5 A0F2 636D 68E9
_______________________________________________
Ws2-hr mailing list
Ws2-hr@icann.org<mailto:Ws2-hr@icann.org>
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org<http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4
678B 08B5 A0F2 636D 68E9
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org<http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4
678B 08B5 A0F2 636D 68E9 <Memo_ ICANN Human Rights
Obligations.docx> _______________________________________________
Ws2-hr mailing list
Ws2-hr@icann.org<mailto:Ws2-hr@icann.org>
________________________________ 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.
P.S. See attached for those who may be interested in International Human Rights Day. Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image001.png@01D2352B.DA0963C0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Aikman-Scalese, Anne Sent: Wednesday, November 02, 2016 5:00 PM To: 'Niels ten Oever'; Jorge.Cancio@bakom.admin.ch Cc: ws2-hr@icann.org; Thomas Rickert; Mathieu Weill; León Felipe Sánchez Ambía Subject: RE: [Ws2-hr] Report to CCWG Certainly there would be labor laws that apply to ICANN employees stationed in countries outside the U.S. which laws will have certain Human Rights implications. I think it will be important for our group to distinguish between ICANN internal processes which are subject to "applicable law" and the portion of the By-Laws that discusses international principles of Human Rights which may apply via the FOI to the extent they are within the scope of ICANN's limited mission. In this regard, I read "applicable law" to have the same meaning as "governing law." We will have to be quite careful about taking an approach that says that ICANN is bound by foreign laws on Human Rights. For example, having an office in Brussels does not automatically mean ICANN is subject to every EU statute on Human Rights, in particular because those statutes we refer to govern acts of States. It appears that since we all recognize how powerful the Internet is, we want to bind ICANN in the way we bind member States but that is not within the scope or meaning of the By-Law. For example, the fact that certain social media operators have agreed to sign the European Commission "Code of Conduct Countering Illegal Hate Speech Online" does not mean that ICANN should voluntarily require registry operators to comply with that Code. I think the reason this notion scares me so much is that it is quite likely that King George would have characterized Patrick Henry's speech about the tyranny of the King of England over the colonies (and the sole state-sponsored religion allowed during his reign) as impermissible hate speech. I find the provisions in the Code for appointment of individuals to monitor this online speech and provide notices to effect rapid takedowns of matter which is purely speech quite disturbing indeed. (On a level with Candidate Trump's intention to ban Muslims from immigrating to the U.S. when the U.S. is in fact a country founded principally on the notion of freedom of religion and assembly and has more descendants of immigrants than descendants of indigenous peoples.) What would be most useful is for ICANN Legal to not only advise as to U.S. laws binding the non-profit but also the laws of the countries where ICANN has offices and how those laws may bind a foreign (California) non-profit public benefit corporation. Such foreign laws would still be in the definition of "applicable law" or "governing law". After that we can move on to principles that do not constitute "applicable law." I certainly agree there may be "applicable law" with Human Rights implications that applies to ICANN offices outside the U.S. Such laws are quite likely to apply to ICANN Operations and not at all to the broad approach taken in the Ruggie Principles to "all its business relationships". I support the relevance of Ruggie Principle 18(b) to our work on drafting an HR-FOI. (As a reminder, Principle 18 is pasted below.) This particular Principle is exactly what ICANN should be doing going forward in the process of respecting Human Rights consistent with existing processes and protocols within ICANN as described in Annex 6, including, but not limited to, the PDP process. I believe the term "respecting" means to fully consider Human Rights principles, applicable U.S. laws (and foreign laws that apply to foreign offices) and finally, performing the balancing of Core Values that must occur pursuant to the By-Laws in each issue that is being considered. This balancing act is not to be done by the WS2 HR-FOI Subgroup and considerations will be different (and weighed and balanced differently) depending on the issue at hand. This is why it is critical for the FOI-HR to expressly recognize and affirm the Policy Development Process in the bottom-up MultiStakeholder Model. We must provide an FOI-HR that 1. puts a priority on compliance with applicable laws. This is “baseline”. 2. Does not attempt to address each scenario or issue that could arise, but rather (in the absence of a direct legal obligation via governing law) creates a Framework for a further analysis via the Policy Development Process. (We are not supposed to be making policy or deciding on some new "applicable law" in WS2 FOI- HR.) The definition of "applicable law" is just that. 3. Will lead to joint community consensus and action because when we get beyond the operation of "applicable law", no contracted party may be bound by a provision that is not developed pursuant to a Policy Development Process. (Yes folks, this is in the Registry Agreement and it is known as “Consensus Policy.”) 4. provides helpful suggestions to the policy-making bodies (and the Board) as to how to perform the act of balancing Core Values, including balancing various Human Rights principles in relation to one another. [cid:image005.png@01D2352B.D9ECB400] Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image006.png@01D2352B.D9ECB400] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> -----Original Message----- From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Niels ten Oever Sent: Friday, October 21, 2016 4:35 AM To: Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Report to CCWG True. It seems that Sidley has used another concept of applicable law than we currently have in our definition. Therefore it will be very interesting to see the answers of ICANN legal to our questions re: our definition. Best, Niels On Fri, 2016-10-21 at 09:11 +0000, Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> wrote:
thanks Niels and Sabine
a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply...
best
Jorge
Von meinem iPhone gesendet
Am 21.10.2016 um 11:06 schrieb Niels ten Oever <lists@nielstenoever.net<mailto:lists@nielstenoever.net>>:
Dear Paul,
I think we can now answer some of your questions. Sidley already
made a 'Response to Questions Regarding ICANN’s Human Rights
Obligations' in July 2015, you can find it attached.
Thanks a lot to Sabine Meyer for digging this up.
Best,
Niels
On 10/20/2016 11:53 AM, Niels ten Oever wrote:
Dear Paul,
I completely agree we should have a clear definition of applicable
law, which is what we are working on, and about which we also asked
ICANN legal a question in the call before last.
Where I am having a much harder time following you is when you ask:
Ask ICANN Legal what
Human Rights laws already apply to the organization.
Human rights law only binds states, so I think we have the answer
to that. Of course states that sign on to different treaties should
reflect those commitments in their bodies of law, but there is no
1:1 relation between specific laws and specific human rights, and
making a genealogy of that would seem almost impossible, or at least a Herculean task.
Especially since it is hard to estimate what laws, policies and
regulations all potentially could have an impact on rights such as
freedom of expression, freedom of association, etc. So I am having
a hard time making this link, but maybe I am missing something.
All the best,
Niels
On 10/19/2016 08:13 PM, Paul McGrady wrote:
Thanks Niels. By saying the group has reached some sort of
consensus that certain Ruggie principals may apply, you are
already including overviews of the various views of the members of
the group. I, for one, still have no idea if any of the Ruggie
principals would apply since I do not know whether or not they are
already subsumed by or preempted by California State law. I hope
your summary will be complete enough to include that at least one
person in the group believes we out to start with what applicable
law is already in place before we begin opining on whether or not
third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law.
We simply have no hope at hitting the target if we insist on
having blinders on. Not telling the Plenary CCWG that we have
decided to put on blinders is an important thing for them to know
so that they can either tell us to take off the blinders and look
first at what human rights requirements already exist under
applicable law or they can consent to us trying to put the puzzle together in the dark.
As far as my suggestions for next steps, they remain the same as
the first (among many) times I have brought up this subject. Ask
ICANN Legal what Human Rights laws already apply to the
organization. They have been operating in California for some
time now and they already know the answer to this question.
Best,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>
-----Original Message-----
From: Niels ten Oever [mailto:lists@nielstenoever.net]
Sent: Wednesday, October 19, 2016 11:24 AM
To: Paul McGrady <policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>>; ws2-hr@icann.org<mailto:ws2-hr@icann.org>
Cc: thomas@rickert.net<mailto:thomas@rickert.net>
Subject: Re: [Ws2-hr] Report to CCWG
Hi Paul,
I am a bit hesitant to add an overview of different views of
members of the group, but I will try.
In the meantime I would still be very interested to hear from you
how you think we could approach this, with the limited resources
of our group and in conjunction with the current understanding of
applicable law we're working on.
Best,
Niels
On 10/19/2016 05:31 PM, Paul McGrady wrote:
Thanks Niels. I would like for your summary to include notice
that I have consistently called for us to evaluate what human
rights principles already apply to ICANN as a result of
applicable California law in order to get a baseline to begin a
gap analysis, but that the request has not been acted upon by the group. Thanks.
Best,
Paul
Paul D. McGrady, Jr.
policy@paulmcgrady.com<mailto:policy@paulmcgrady.com>
-----Original Message-----
From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org]
On Behalf Of Niels ten Oever
Sent: Tuesday, October 18, 2016 11:24 AM
To: ws2-hr@icann.org<mailto:ws2-hr@icann.org>
Subject: [Ws2-hr] Report to CCWG
Dear all,
I hope this email finds you well. Coming Friday is the deadline
for me to report to the CCWG Plenary on the progress of our
Subgroup. I drafted the text underneath. Your input is more than
welcome before Friday, when I will submit it to the CCWG co-chairs.
All your input is of course very much appreciated.
Best,
Niels
1. Executive Summary
The CCWG WS2 Human Rights Subgroup has documented the historical
context of the discussions on ICANNs human rights bylaw, which
together with the CCWG report (especially Annex 6 and 12) form
it's scope of discussion, with a Framework of Interpretation of
the Human
Rights Bylaw as intended output.
The subgroup is currently preparing a Framework of Interpretation
which in due time will be presented to the CCWG plenary for discussion.
2. Description of the Issue
2.1 Current State of Play
The CCWG WS2 Human Rights Subgroup started of with providing an
overview of the discussions and agreements as they were made
during CCWG Workstream 1 [0]. Subsequently the Subgroup has
analyzed the UN Guiding Principles on Business and Human Rights
(UNGPs), and their relevance and applicability for ICANN. While
there was consensus that some principles were relevant for the
development for a Framework of Interpretation (such as 13a and
15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind.
Therefore a drafting team is currently iteratively designing a
draft Framework of Interpretation which is being discussed in weekly calls.
It is expected, that at this rate, the subgroup will be able to
achieve
the set milestones.
2.2 Supplemental Report
See [0]
3 Recommendation
3.1 Requirements for Recommendation We haven't reached consensus
on a recommendation yet.
3.2 Rationale for Recommendation
We haven't reached consensus on a recommendation yet.
[0]
https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmd
r5B1_
M_aNMo
Zb4/edit?usp=sharing
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org<http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4
678B 08B5 A0F2 636D 68E9
_______________________________________________
Ws2-hr mailing list
Ws2-hr@icann.org<mailto:Ws2-hr@icann.org>
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org<http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4
678B 08B5 A0F2 636D 68E9
--
Niels ten Oever
Head of Digital
Article 19
www.article19.org<http://www.article19.org>
PGP fingerprint 8D9F C567 BEE4 A431 56C4
678B 08B5 A0F2 636D 68E9 <Memo_ ICANN Human Rights
Obligations.docx> _______________________________________________
Ws2-hr mailing list
Ws2-hr@icann.org<mailto:Ws2-hr@icann.org>
________________________________ 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.
participants (10)
-
Aikman-Scalese, Anne -
Arasteh -
Greg Shatan -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh
-
Niels ten Oever -
Nigel Roberts -
Paul McGrady -
Rudolph Daniel -
Schweighofer Erich