I agree in part and disagree in part: On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich < erich.schweighofer@univie.ac.at> wrote: ​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​ I tend to agree with this.​ The hard legal core of ICANN's obligations is much less, even depending on

the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw. It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with. ​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

My clarifications „inline“. Sorry for quick drafting and being unclear. Erich Schweighofer Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I agree in part and disagree in part: On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote: ​...​ The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN. ​ I tend to agree with this.​ The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions. ​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​ Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions. ICANN is inclusive, e.g. also flexible. ​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​ It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards. WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations. ​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that. It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern. You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now. In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent. ​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw. It is good to work on an idealistic world but we have to realistic, too. ​That I can agree with. ​ Best, Erich Schweighofer ​Greg​ -----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dear all, Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC. Comments and suggestions are welcome. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical. From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC A response on Erich's last point: WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations. ​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that. It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern. You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now. We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue. Greg On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote: My clarifications „inline“. Sorry for quick drafting and being unclear. Erich Schweighofer Von: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I agree in part and disagree in part: On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote: ​...​ The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN. ​ I tend to agree with this.​ The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions. ​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​ Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions. ICANN is inclusive, e.g. also flexible. ​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​ It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards. WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations. ​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that. It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern. You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now. In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent. ​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw. It is good to work on an idealistic world but we have to realistic, too. ​That I can agree with. ​ Best, Erich Schweighofer ​Greg​ -----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dear all, Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC. Comments and suggestions are welcome. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

Of course ICANN should be obligated to respect all human rights. That’s obvious. If that’s all there is to the framework, then we can conclude our work right now. IMHO, the important work would be to focus on which human rights are most relevant to ICANN and develop a recommendation as to the scope of ICANN’s obligation to respect those in particular. I’m getting the impression that the objection to cherry-picking is actually an attempt to steer the working group away from any work that would actually be relevant and useful. From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Tuesday, September 27, 2016 10:56 AM To: Daniel Appelman Cc: Schweighofer Erich; ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them." On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com<mailto:dappelman@mh-llp.com>> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical. From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC A response on Erich's last point: WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations. ​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that. It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern. You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now. We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue. Greg On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote: My clarifications „inline“. Sorry for quick drafting and being unclear. Erich Schweighofer Von: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I agree in part and disagree in part: On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote: ​...​ The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN. ​ I tend to agree with this.​ The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions. ​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​ Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions. ICANN is inclusive, e.g. also flexible. ​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​ It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards. WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations. ​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that. It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern. You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now. In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent. ​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw. It is good to work on an idealistic world but we have to realistic, too. ​That I can agree with. ​ Best, Erich Schweighofer ​Greg​ -----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dear all, Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC. Comments and suggestions are welcome. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

Didn’t mean to be insulting for sure. Where I’m wrong, I’d appreciate re-education. From: Greg Shatan [mailto:gregshatanipc@gmail.com] Sent: Tuesday, September 27, 2016 11:17 AM To: Daniel Appelman Cc: Schweighofer Erich; ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC With all due respect, wrong, wrong and definitely wrong (and frankly, insulting). Kind regards, Greg On Tue, Sep 27, 2016 at 2:13 PM, Daniel Appelman <dappelman@mh-llp.com<mailto:dappelman@mh-llp.com>> wrote: Of course ICANN should be obligated to respect all human rights. That’s obvious. If that’s all there is to the framework, then we can conclude our work right now. IMHO, the important work would be to focus on which human rights are most relevant to ICANN and develop a recommendation as to the scope of ICANN’s obligation to respect those in particular. I’m getting the impression that the objection to cherry-picking is actually an attempt to steer the working group away from any work that would actually be relevant and useful. From: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Sent: Tuesday, September 27, 2016 10:56 AM To: Daniel Appelman Cc: Schweighofer Erich; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them." On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com<mailto:dappelman@mh-llp.com>> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical. From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC A response on Erich's last point: WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations. ​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that. It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern. You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now. We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue. Greg On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote: My clarifications „inline“. Sorry for quick drafting and being unclear. Erich Schweighofer Von: Greg Shatan [mailto:gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I agree in part and disagree in part: On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote: ​...​ The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN. ​ I tend to agree with this.​ The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions. ​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​ Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions. ICANN is inclusive, e.g. also flexible. ​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​ It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards. WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations. ​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that. It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern. You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now. In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent. ​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw. It is good to work on an idealistic world but we have to realistic, too. ​That I can agree with. ​ Best, Erich Schweighofer ​Greg​ -----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org>] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dear all, Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC. Comments and suggestions are welcome. 1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB Best, Niels -- Niels ten Oever Head of Digital Article 19 www.article19.org<http://www.article19.org> PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9 _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr

I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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

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

It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting. I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.) As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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

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

_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting. I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.) As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant? Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN. -----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting. I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.) As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr

Wow. I guess I could not disagree more. I do not think that fostering discussion about changes to Human Rights law is contributing to an adverse impact -- since I do not think that talking about an issue is the same as implementing the issue.. Under your theory, all human rights are off limits for discussion whenever someone wants to speak of them in favor of their modification in a way ICANN deems to be a derogation. To be clear, I would oppose the substance of legalizing torture with every fiber of my being. But I will also oppose, with equal fiber, an effort to use Human Rights as a ground for censorship. For myself, having ICANN as the arbiter what is and is not acceptable discourse is .. .very wrong. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 4:16 PM To: 'Paul Rosenzweig' <paul.rosenzweig@redbranchconsulting.com>; 'Daniel Appelman' <dappelman@mh-llp.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; 'Greg Shatan' <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Paul, One reason I disagree is that ICANN's primary business relationship is awarding gTLD contracts. Should an application be filed for (dot)legalizetorture, ICANN will be "contributing to" an adverse impact on human rights by awarding such a contract and this is in violation of Ruggie principles if it does award the TLD. Nevertheless, freedom of expression may be involved in such a gTLD application. So it is incorrect to say that ICANN's activities will never involve certain Human Rights like torture. ICANN may or may not have policy advice from the GAC regarding such a TLD, but let's at least admit that TLDs are potentially more influential and stronger in status than second level domains and that if we stick to the notion that ICANN cannot, in its business operations, "contribute to adverse impact" on Human Rights - that very definitely has implications for evaluation of gTLD applications. Do we think we are saying that ICANN should not contribute to adverse human rights impact, except in cases of evaluating/awarding gTLD contracts? My point here is that such applications may run the gamut of every Human Right and "contributing to adverse impact" is a very broad standard indeed, especially considering we are looking at "addressing" the adverse impact in all of its business relationships. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Tuesday, September 27, 2016 1:05 PM To: 'Daniel Appelman'; Aikman-Scalese, Anne; 'Bastiaan Goslings'; 'Greg Shatan' Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant? Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN. -----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting. I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.) As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ 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.

What you are both saying is you weighed and balanced and free speech comes out on top in this case. Are you addressing all new gTLD applications? In other words, are we saying definitively that ICANN has NO obligation to evaluate gTLD applications with reference to the FOI-HR or to consider whether to establish a Human Rights Objection Process? If so, then we should record that consensus in the subgroup. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image002.png@01D218D8.4D199350] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Schaefer, Brett [mailto:Brett.Schaefer@heritage.org] Sent: Tuesday, September 27, 2016 2:32 PM To: Paul Rosenzweig Cc: Aikman-Scalese, Anne; Daniel Appelman; Bastiaan Goslings; Greg Shatan; ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Wholly agree. ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> __________ On Sep 27, 2016, at 5:11 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Wow. I guess I could not disagree more. I do not think that fostering discussion about changes to Human Rights law is contributing to an adverse impact -- since I do not think that talking about an issue is the same as implementing the issue.. Under your theory, all human rights are off limits for discussion whenever someone wants to speak of them in favor of their modification in a way ICANN deems to be a derogation. To be clear, I would oppose the substance of legalizing torture with every fiber of my being. But I will also oppose, with equal fiber, an effort to use Human Rights as a ground for censorship. For myself, having ICANN as the arbiter what is and is not acceptable discourse is .. .very wrong. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 4:16 PM To: 'Paul Rosenzweig' <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Daniel Appelman' <dappelman@mh-llp.com<mailto:dappelman@mh-llp.com>>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net<mailto:bastiaan.goslings@ams-ix.net>>; 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Paul, One reason I disagree is that ICANN's primary business relationship is awarding gTLD contracts. Should an application be filed for (dot)legalizetorture, ICANN will be "contributing to" an adverse impact on human rights by awarding such a contract and this is in violation of Ruggie principles if it does award the TLD. Nevertheless, freedom of expression may be involved in such a gTLD application. So it is incorrect to say that ICANN's activities will never involve certain Human Rights like torture. ICANN may or may not have policy advice from the GAC regarding such a TLD, but let's at least admit that TLDs are potentially more influential and stronger in status than second level domains and that if we stick to the notion that ICANN cannot, in its business operations, "contribute to adverse impact" on Human Rights - that very definitely has implications for evaluation of gTLD applications. Do we think we are saying that ICANN should not contribute to adverse human rights impact, except in cases of evaluating/awarding gTLD contracts? My point here is that such applications may run the gamut of every Human Right and "contributing to adverse impact" is a very broad standard indeed, especially considering we are looking at "addressing" the adverse impact in all of its business relationships. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com> -----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Tuesday, September 27, 2016 1:05 PM To: 'Daniel Appelman'; Aikman-Scalese, Anne; 'Bastiaan Goslings'; 'Greg Shatan' Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant? Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net<mailto:bastiaan.goslings@ams-ix.net>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN. -----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com> -----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan -----Original Message----- From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting. I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.) As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<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 Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com<mailto:dappelman@mh-llp.com>> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org<http://www.article19.org>

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ 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.

Brett, I find the prospect just a troubling as you do. That is the only reason I raise such examples. As we can see from the European Commission Code of Conduct re Combatting Illegal Hate Speech Online, opinions may differ as to what speech can be legally protected and what speech can be legally prevented. I personally think “hate speech” is an oxymoron. Once you start limiting what people can say freely online, you are in big trouble in the freedom of expression arena. The example I provided demonstrates why we need to consider the real impact of adopting Ruggie Principles in the ICANN environment. The Principle 13 (a) that was alleged to be “agreed” in the last call, by its strict language, would absolutely require ICANN to consider and address whether a gTLD application designed to promote torture has an adverse impact on Human Rights. ICANN, if it adopts that principle, would be expected to “mitigate” such impact. That is why I said 13(a) smacks of “content regulation” on the call yesterday. The example demonstrates the danger in adopting principles in a vacuum. (If anyone wants to argue that Principle 13(a) doesn’t apply by its terms to a gTLD application of this type, I would love to hear it. But this example simply demonstrates why I don’t think 13(a) works in the ICANN context. When I say I support a Human Rights Objection process to a new gTLD application process (to be sent to an independent panel), I mean on very limited grounds to be developed via PDP - and yes I agree 100% that free speech is not torture. I am just pointing out that if you weigh this example against the language of Ruggie 13(a) about “contributing to” … “an adverse impact on Human Rights” and “addressing” and “mitigating” the adverse impact, you get in trouble very fast. It’s getting to the point in the group that we are losing time because we are discussing Ruggie Principles in a vacuum – with no real reference to ICANN processes and protocols. No one seems to want to talk about gTLD applications (ICANN’s primary business relationship) or talk about PDPs and how policy is really supposed to be made in ICANN. I raise extreme examples because you cannot adopt principles from Ruggie in a “vacuum”. In addition, Paul makes a good point about the Bylaw language relative to applicable law. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image003.png@01D21981.F39157F0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Schaefer, Brett [mailto:Brett.Schaefer@heritage.org] Sent: Wednesday, September 28, 2016 11:28 AM To: Aikman-Scalese, Anne; Paul Rosenzweig Cc: Daniel Appelman; Bastiaan Goslings; Greg Shatan; ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Anne, We aren’t “balancing” free speech against “torture” because talking about torture is NOT torture. There is no balance here – there is the human right to free expression and you are proposing that ICANN should violate it because some people might not like the words. There are more than 50 human rights in different treaties and documents that have various levels recognition internationally. Correct me if I am wrongly interpreting your position, but you seem to be arguing that ANY TLD that challenges or questions ANY human right should be off limits. Furthermore, if ICANN has a responsibility to prevent these things at the top level, would it not also have a responsibility to prevent them at the second or third level via its contracts? If .legalizetorture is bad then so is legalizetorture.com and .net and etc. Are you surprised that that might be troubling? Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 7:01 PM To: Schaefer, Brett; Paul Rosenzweig Cc: Daniel Appelman; Bastiaan Goslings; Greg Shatan; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC What you are both saying is you weighed and balanced and free speech comes out on top in this case. Are you addressing all new gTLD applications? In other words, are we saying definitively that ICANN has NO obligation to evaluate gTLD applications with reference to the FOI-HR or to consider whether to establish a Human Rights Objection Process? If so, then we should record that consensus in the subgroup. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _____________________________ [cid:image004.png@01D2197E.D6D62DA0] Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com/> From: Schaefer, Brett [mailto:Brett.Schaefer@heritage.org] Sent: Tuesday, September 27, 2016 2:32 PM To: Paul Rosenzweig Cc: Aikman-Scalese, Anne; Daniel Appelman; Bastiaan Goslings; Greg Shatan; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Wholly agree. ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> __________ On Sep 27, 2016, at 5:11 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> wrote: Wow. I guess I could not disagree more. I do not think that fostering discussion about changes to Human Rights law is contributing to an adverse impact -- since I do not think that talking about an issue is the same as implementing the issue.. Under your theory, all human rights are off limits for discussion whenever someone wants to speak of them in favor of their modification in a way ICANN deems to be a derogation. To be clear, I would oppose the substance of legalizing torture with every fiber of my being. But I will also oppose, with equal fiber, an effort to use Human Rights as a ground for censorship. For myself, having ICANN as the arbiter what is and is not acceptable discourse is .. .very wrong. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 4:16 PM To: 'Paul Rosenzweig' <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>; 'Daniel Appelman' <dappelman@mh-llp.com<mailto:dappelman@mh-llp.com>>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net<mailto:bastiaan.goslings@ams-ix.net>>; 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Paul, One reason I disagree is that ICANN's primary business relationship is awarding gTLD contracts. Should an application be filed for (dot)legalizetorture, ICANN will be "contributing to" an adverse impact on human rights by awarding such a contract and this is in violation of Ruggie principles if it does award the TLD. Nevertheless, freedom of expression may be involved in such a gTLD application. So it is incorrect to say that ICANN's activities will never involve certain Human Rights like torture. ICANN may or may not have policy advice from the GAC regarding such a TLD, but let's at least admit that TLDs are potentially more influential and stronger in status than second level domains and that if we stick to the notion that ICANN cannot, in its business operations, "contribute to adverse impact" on Human Rights - that very definitely has implications for evaluation of gTLD applications. Do we think we are saying that ICANN should not contribute to adverse human rights impact, except in cases of evaluating/awarding gTLD contracts? My point here is that such applications may run the gamut of every Human Right and "contributing to adverse impact" is a very broad standard indeed, especially considering we are looking at "addressing" the adverse impact in all of its business relationships. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com> -----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Tuesday, September 27, 2016 1:05 PM To: 'Daniel Appelman'; Aikman-Scalese, Anne; 'Bastiaan Goslings'; 'Greg Shatan' Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant? Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 www.redbranchconsulting.com<http://www.redbranchconsulting.com> My PGP Key: http://redbranchconsulting.com/who-we-are/public-pgp-key/ -----Original Message----- From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com<mailto:AAikman@lrrc.com>>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net<mailto:bastiaan.goslings@ams-ix.net>>; Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN. -----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<http://lrrc.com> -----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan -----Original Message----- From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting. I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.) As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com<mailto:AAikman@lrrc.com> _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com<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 Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com<mailto:dappelman@mh-llp.com>> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at<mailto:erich.schweighofer@univie.ac.at>> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org<mailto:ws2-hr-bounces@icann.org> [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org<mailto:ws2-hr@icann.org> Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org<http://www.article19.org>

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org<mailto:Ws2-hr@icann.org> https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.

I guess most of those people here who have studied human rights law are forgetting the doctrine of'living instrument'. If ICANN does not choose to reject international human rights in their entirely (whether the particular rights derive from customary law or from an instrument such as the UDHR) --- and I think we are all agreed that is not the case ---- ICANN will, in the long run, have to deal with that concept. Inhibiting discussion is itself an adverse impact, so long as it is relevant discussion (and not ridiculously off topic). Hyperbole is a normal rhetorical device. Dealing with the right to life, and the prohibition against torture is something that is extremely easy to do and may be disposed of in under 5 seconds by saying that since under no circumstances would ICANN be involved in this, it accepts those rights as being absolute rights (which, in Europe, they are). On 27/09/16 22:10, Paul Rosenzweig wrote:

Wow. I guess I could not disagree more. I do not think that fostering discussion aboutiue changes to Human Rights law is contributing to an adverse impact -- since I do not think that talking about an issue is the same as implementing the issue.. Under your theory, all human rights are off limits for discussion whenever someone wants to speak of them in favor of their modification in a way ICANN deems to be a derogation.

To be clear, I would oppose the substance of legalizing torture with every fiber of my being. But I will also oppose, with equal fiber, an effort to use Human Rights as a ground for censorship. For myself, having ICANN as the arbiter what is and is not acceptable discourse is .. .very wrong. Paul

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

-----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 4:16 PM To: 'Paul Rosenzweig' <paul.rosenzweig@redbranchconsulting.com>; 'Daniel Appelman' <dappelman@mh-llp.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; 'Greg Shatan' <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Paul, One reason I disagree is that ICANN's primary business relationship is awarding gTLD contracts. Should an application be filed for

(dot)legalizetorture,

ICANN will be "contributing to" an adverse impact on human rights by awarding such a contract and this is in violation of Ruggie principles if it does award the TLD. Nevertheless, freedom of expression may be involved in such a gTLD application. So it is incorrect to say that ICANN's activities will never involve certain Human Rights like torture.

ICANN may or may not have policy advice from the GAC regarding such a TLD, but let's at least admit that TLDs are potentially more influential and stronger in status than second level domains and that if we stick to the notion that ICANN cannot, in its business operations, "contribute to adverse impact" on Human Rights - that very definitely has implications for evaluation of gTLD applications.

Do we think we are saying that ICANN should not contribute to adverse human rights impact, except in cases of evaluating/awarding gTLD contracts? My point here is that such applications may run the gamut of every Human Right and "contributing to adverse impact" is a very broad standard indeed, especially considering we are looking at "addressing" the adverse impact in all of its business relationships.

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________

Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: Paul Rosenzweig [mailto:paul.rosenzweig@redbranchconsulting.com] Sent: Tuesday, September 27, 2016 1:05 PM To: 'Daniel Appelman'; Aikman-Scalese, Anne; 'Bastiaan Goslings'; 'Greg Shatan' Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant?

Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made?

Paul

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

-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN.

-----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________

Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com

-----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan

-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting.

I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.)

As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point.

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________

Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’.

Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’.

(The ‘also’ refers to the commitments in section 1.2)

-Bastiaan

...

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's co! mmitment i s limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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Paul is correct. I also must take issue with Greg. The construction of the by law so as to restrict ICANN to only respect human rights where an applicable DOMESTIC law requires it to, is wrong, and is the exact reason I argued, in the minority, against the phrase. There is no applicable law,, for example, that protects individuals and organisations against breaches of their right to free expression. If there is, tell me what it is, and where I can read and construe it. In particular, please tell me the section of that law that makes it applicable to a private company that no longer has any formal connection to the US Government. On 27/09/16 21:05, Paul Rosenzweig wrote:

I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant?

Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made?

Paul

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

-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN.

-----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________

Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com

-----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan

-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting.

I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.)

As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point.

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________

Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’.

Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’.

(The ‘also’ refers to the commitments in section 1.2)

-Bastiaan

...

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's co! mmitment i s limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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

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I think Bastian well states our role in this sub-team. Nigel makes a fair point about the idea that inhibiting relevant discussion can itself be an adverse impact but in my view that has to be read in context. In our case that context is, as Bastian put it, the HR core value text - Bylaw Article 1.2(b)(viii). While many discussions about HR might take place in an open context, that appears not to be the case for our work. I believe this sub-team’s work is to interpret a bylaw that sets certain conditions. These conditions are that ICANN’s commitment to respect HR will: 1. Be done within the scope of ICANN’s mission and other core values; 2. Relate to “internationally recognized human rights as required by applicable law”; 3. Not create or “be interpreted to create” any obligation on ICANN outside of its mission or beyond obligations found in applicable law; 4. Not obligate ICANN to enforce its HR obligations, or the HR obligations of other parties, against other parties; and 5. Be subject to any other limitations set forth in Bylaw Article 27.2. David David McAuley International Policy Manager Verisign Inc. 703-948-4154 -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Wednesday, September 28, 2016 3:21 AM To: Nigel Roberts Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

On 28 Sep 2016, at 08:20, Nigel Roberts <nigel@channelisles.net> wrote:

Paul is correct.

I also must take issue with Greg. The construction of the by law so as to restrict ICANN to only respect human rights where an applicable DOMESTIC law requires it to, is wrong, and is the exact reason I argued, in the minority, against the phrase.

This tells me that you have a strong negative opinion about the text of new ‘respecting human rights’ core value. (’The construction (…) is wrong’). If so I can respect that. (It also suggests to me you’d prefer to see this bylaw different, stronger and more explicit, with regard to the responsibility ICANN should have with regard to respecting human rights. But now I am probably starting to speculate.) However. I have been trying to put my personal preferences and opinions aside and take the HR core value text as a starting point when engaging in this WS2 subgroup. Including how this core value text fits within the rest of the new bylaws/core values/mission text. While using the WS1 final report to get a feel for the context and what we are trying to achieve in WS2 with regard to ICANNs respecting of HRs, i.e. that this new core value, together with the others, ‘should guide the decisions and actions of ICANN’. This has been the main reason for me to stress the ‘as required by applicable law’ part of the core value, combined with the additional hard limitations set in the bylaw itself and in the mission (1.1. (c)). What I am trying to say here is that IMO we need to work with the text that has been agreed upon in WS1 -which is challenging enough as it is as it already gives plenty of room for diverging opinions- and not broaden (reopen?) the scope of what we are meant to deliver. Of course let me know if I am missing anything here, until further notice I will assume that the core value text itself, whatever people might think of it, is not open for debate.

There is no applicable law,, for example, that protects individuals and organisations against breaches of their right to free expression.

If there is, tell me what it is, and where I can read and construe it.

In particular, please tell me the section of that law that makes it applicable to a private company that no longer has any formal connection to the US Government.

On 27/09/16 21:05, Paul Rosenzweig wrote:

...

I guess you folks leave me confused. Certainly, all human rights are due to be respected. But if the FoI is to have any use at all, doesn't it have to deal with actual use case scenarios that are applicable to ICANN? There are human rights prohibitions against torture, that ICANN must respect -- but the chances of that particular human right having any relevance to anything that ICANN will ever do is vanishingly small, no? Why would we construct an FoI that is so amorphous that it accommodates that possibility if in doing so we lose adequate guidance for the HR issues that are more likely to be relevant?

Can we not agree that human rights are universal and indivisible but that some of them are more likely of applicability to ICANN's operations than others? Or is that really so controversial a statement that it can't be made?

Paul

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

-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Daniel Appelman Sent: Tuesday, September 27, 2016 2:59 PM To: Aikman-Scalese, Anne <AAikman@lrrc.com>; 'Bastiaan Goslings' <bastiaan.goslings@ams-ix.net>; Greg Shatan <gregshatanipc@gmail.com> Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Thanks for your thoughts, Anne. I never advocated excluding any human rights from the framework, of course. But none of the comments thus far have convinced me that they are all equally relevant for ICANN.

-----Original Message----- From: Aikman-Scalese, Anne [mailto:AAikman@lrrc.com] Sent: Tuesday, September 27, 2016 11:53 AM To: Daniel Appelman; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dan, I think that in the FOI-HR, it would be a mistake to single out which Human Rights we think have to be considered (to the exclusion of others) in ICANN's processes and business relationships. I think the Framework must leave the freedom for ICANN, in its various processes, to consider and balance all international human rights. To exclude some would be dangerous - and just plain wrong, since, a Nigel pointed out in the call I had to miss, there is, in connection with any such human rights evaluation, a balancing act to be performed. Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________

Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com

-----Original Message----- From: Daniel Appelman [mailto:dappelman@mh-llp.com] Sent: Tuesday, September 27, 2016 11:50 AM To: Aikman-Scalese, Anne; 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: RE: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Anne: So does that first statement also mean that in your opinion it is not true that some human rights are more RELEVANT to ICANN's activities and mission than others? And is that the consensus of the WG? I do agree with the statements in your second and third paragraphs, btw. Dan

-----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 11:34 AM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting.

I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.)

As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point.

Anne

Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________

Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’.

Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’.

(The ‘also’ refers to the commitments in section 1.2)

-Bastiaan

...

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's co! mmitment i s limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

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+1 to David' s thoughts Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of McAuley, David Sent: Tuesday, September 27, 2016 11:51 AM To: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC Anne, I think this formulation is right (about PDP). The FoI itself will simply be a framework of interpretation regarding ICANN’s commitment to respect HR. It will not reach beyond ICANN, as I see it. Whatever FoI is ultimately developed could, I presume, be considered by any PDP process – I agree that a PDP process may not be required to do so by applicable law but the process certainly could consider the FoI as a matter of good practice. David David McAuley International Policy Manager Verisign Inc. 703-948-4154 -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Aikman-Scalese, Anne Sent: Tuesday, September 27, 2016 2:34 PM To: 'Bastiaan Goslings'; Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC It is not true that "some human rights are more important than others". I agree with those who have noted that continued attempts to "cherry-pick" among human rights are inappropriate and not in scope for the task. This is clear from the document stating the conclusions from WS1 and that document was already agreed on by the subteam in a prior meeting. I also wish to re-emphasize that the primary role in which ICANN may have a positive impact on human rights is in its primary business relationships. These are the contractual obligations with registries and registrars. Again, these are matters which must ultimately be addressed via PDP so in developing an FOI-HR, we must take that into account and understand that we are developing an FOI-HR that will be applied in the PDP process (as well as other processes within ICANN.) As I understand it, there is no "applicable law" that will require application of the FOI-HR to the PDP process. That would be wholly voluntary. Some may feel this is beyond scope and mission as to what the Bylaw requires. Would like to know others thoughts on this point. Anne Anne E. Aikman-Scalese Of Counsel 520.629.4428 office 520.879.4725 fax AAikman@lrrc.com _______________________________ Lewis Roca Rothgerber Christie LLP One South Church Avenue, Suite 700 Tucson, Arizona 85701-1611 lrrc.com -----Original Message----- From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Bastiaan Goslings Sent: Tuesday, September 27, 2016 11:20 AM To: Greg Shatan Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC I do not think we need to establish _which_ human rights ICANN should respect (more). The way I interpret the core value is that the applicability of (‘internationally recognised') rights is determined by ‘applicable law’. ‘As required’. Furthermore, the core value does not speak of ‘commit’ or a ‘commitment’ - because it is a core value. Together with the other values, and that could be a balancing act, it ‘should also guide the decisions and actions of ICANN’. (The ‘also’ refers to the commitments in section 1.2) -Bastiaan

On 27 Sep 2016, at 19:56, Greg Shatan <gregshatanipc@gmail.com> wrote:

You seem to assume that the Framework will deal with rights at the granular level. I don't think it needs to or should. The question is "What human rights is ICANN committed to respect?" I don't think the answer should be "Some of them."

On Tue, Sep 27, 2016 at 1:50 PM, Daniel Appelman <dappelman@mh-llp.com> wrote: Some human rights are obviously more applicable to ICANN than others. ICANN’s framework should focus on those in particular. If that’s “cherry-picking” then I don’t understand how anyone could object to it. Why would the framework even bother with human rights that are inapplicable to ICANN’s mission and activities? It’s just not logical.

From: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] On Behalf Of Greg Shatan Sent: Tuesday, September 27, 2016 10:42 AM To: Schweighofer Erich Cc: ws2-hr@icann.org Subject: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

A response on Erich's last point:

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

We've been using the term cherry-picking to mean just that -- picking and choosing, menu-style, from the list of human rights and deciding that some are going to be considered and some won't. Whatever you call it, I'm opposed to it. I'm not opposed to choosing among human rights conventions and instruments; indeed, we must do that. But within, e.g., the UDHR, we should not be picking, we need to take it whole as a document. The extent of ICANN's commitment to human rights is stated in the Bylaw, -- to respect internationally recognized human rights as required by applicable law. This is critical in three ways: (1) ICANN's commitment is one of "respecting" (and not protecting or enforcing) human rights (and we need to define what "respect" means in the context of ICANN, which unfortunately does not align with Ruggie's idea of respect for business enterprises); (2) ICANN must look to "internationally recognized human rights" -- no more and no less; and (3) ICANN's commitment is limited to what is "required by applicable law." ICANN could go further of course (e.g., it could ensure there are gluten free food options at every ICANN meeting and event), but that is not a Bylaws issue and thus not a Framework of Interpretation issue.

Greg

On Tue, Sep 27, 2016 at 12:14 PM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

My clarifications „inline“. Sorry for quick drafting and being unclear.

Erich Schweighofer

Von: Greg Shatan [mailto:gregshatanipc@gmail.com] Gesendet: Dienstag, 27. September 2016 17:35 An: Schweighofer Erich Cc: Niels ten Oever; ws2-hr@icann.org Betreff: Re: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

I agree in part and disagree in part:

On Tue, Sep 27, 2016 at 6:05 AM, Schweighofer Erich <erich.schweighofer@univie.ac.at> wrote:

​...​

The more I read about Ruggie Principles I am convinced that they do not really fit for ICANN.

​

I tend to agree with this.​

The hard legal core of ICANN's obligations is much less, even depending on the various jurisdictions.

​I'm not sure what this means. If it means that there are Ruggie obligations that don't fit ICANN, then I agree. Otherwise, this needs further explanation.​

Yes – Ruggie do not fit properly. ICANN is essential for a global communication platform and must respect related human rights –the “hard core”, subject to the interpretation in the various jurisdictions.

ICANN is inclusive, e.g. also flexible.

​Again not sure what this means. If this means that ICANN must be inclusive of, e.g., New gTLD applicants and ccTLD operators (governments and otherwise), whether or not they comply with human rights provision, then I agree. ICANN can't be a human rights filter for the Internet. If this means something else, it needs further explanation. ​

It means that we cannot oblige new gTLD applicants or ccTLD operators to comply with human rights above the national interpretation of human rights obligations. There are other fora to discuss compliance with human rights standards.

WS2-HR should focus on the freedom of communication worldwide, subject to usual safeguard clauses + the international human rights treaty obligations.

​This sounds suspiciously like "cherry-picking" (i.e., picking and choosing among human rights obligation), and I am firmly opposed to that. Also while human rights treaty obligations are relevant (and we need to determine what we are referring to as such)​ they do not bind ICANN, except to the extent they have been adopted and codified by applicable laws. The Bylaw doesn't take us further than that.

It is not cherry-picking, it is a suggestion which human rights are relevant to be considered. Free communication should be the main concern.

You are right that human rights treaties formally do not bind ICANN but that sound not good in practice. We have to substitute this by self-commitment, as we do now.

In an ethical code of ICANN, we can go much further, and here we can re-use Ruggie to some extent.

​An "ethical code of ICANN"​ is far, far beyond the mandate and scope of this subgroup. Our task is to provide a framework for interpreting the Bylaw.

It is good to work on an idealistic world but we have to realistic, too.

​That I can agree with.

​

Best, Erich Schweighofer

​Greg​

-----Ursprüngliche Nachricht----- Von: ws2-hr-bounces@icann.org [mailto:ws2-hr-bounces@icann.org] Im Auftrag von Niels ten Oever Gesendet: Dienstag, 27. September 2016 11:18 An: ws2-hr@icann.org Betreff: [Ws2-hr] Proposed agenda meeting September 27 - 19:00 UTC

Dear all,

Please find underneath and attached the proposed agenda for the call of September 27, 19:00 UTC.

Comments and suggestions are welcome.

1. Administrivia Roll call, absentees, SoIs, etc 2. Analysis of Ruggie Principles for ICANN - discussion on UN Guiding Principles 15, 13, 19 3. AOB

Best,

Niels

-- Niels ten Oever Head of Digital

Article 19 www.article19.org

PGP fingerprint 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D 68E9

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_______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr _______________________________________________ Ws2-hr mailing list Ws2-hr@icann.org https://mm.icann.org/mailman/listinfo/ws2-hr ________________________________ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521.