[CCWG-ACCT] yet another human rights question

[Edward Morris]

Hi,

Sent from my iPhone

> On Jul 27, 2015, at 1:48 PM, Avri Doria <avri at acm.org> wrote:
> 
> Hi,
> 
> The problem with the   commitment to International Laws and Norms in the
> articles is that the Human Rights covenants laws only apply directly to
> governments, not to a business/ngo like ICANN.

This is a very important point that needs to be considered. If we are to duplicate ICANN's current human rights obligations as a government contractor in our newly independent corporation I'd suggest we should first find out exactly what they are. Would it be possible to refer to our lawyers the following question?:

1. What, if any, obligations towards human rights does ICANN currently have by virtue of it's status as a U.S. government contractor that would not exist as an independent entity?

Once we have the answer to that question I think we could have a more meaningful discussion on this matter.

Thanks for raising this most important and most interesting issue Avri.




> In order for them to
> apply to ICANN, we need to add them to the bylaws once NTIA is no longer
> sitting in oversight.
> 
> The apply to us now because of NTIA, once NTIA is gone we will be free
> of them, except in so far as they have been codified by California and
> US law.  That is unless we incorporate a comitment to care in the bylaws.
> 
> avri
> 
> 
>> On 27-Jul-15 12:12, Nigel Roberts wrote:
>> I agree with Avri.
>> 
>> There are a number of fundamental rights that are impacted by ICANN's
>> work.
>> 
>> I refer to the European Convention, but obviously, if you are outside
>> of Europe there are almost direct equivalents in the US Constitution,
>> the Canadian Charter, and of course, the Universal Declaration.
>> 
>> Ther are the "obvious" rights. such Art.1 of Prot. 1, Art 6(1), Art 8,
>> Art 10.
>> 
>> There are also the less obviously applicable -- it should be entirely
>> uncontroversial that ICANN should always act in a way that protects
>> the unqualified rights, such as the right to life and freedom from
>> slavery and torture.
>> 
>> ICANN HAS in its bylaws already given a binding committment to uphold
>> international customary norms, but what is lacking is a mechanism to
>> ensure it does -- without which they are empty words, except when
>> somone spends half a million dollars in court, or IRP to make them.
>> 
>> 
>> 
>> 
>> 
>> 
>>> On 27/07/15 08:44, Avri Doria wrote:
>>> Hi,
>>> 
>>> I am currently writing up my minority report and came to a question I
>>> could not answer.
>>> 
>>> Point 4 of the NTIA requirements includes:
>>> 
>>>   * Maintain the openness of the Internet.
>>> 
>>> This is a Human rights requirement that I do not see reflected in our
>>> stress tests.  Can someone point me at the stress test?  Openness of the
>>> Internet is a derivative or 'umbrella' right that is defined by
>>> reference to human rights such as freedom of expression, freedom of
>>> association, privacy, property, security &c and their interplay.
>>> 
>>> This is one of the stress factors:
>>> 
>>>   * the US and thus NTIA, is a human rights duty bearer.
>>>   * if we were to violate human rights, NTIA in its oversight role
>>> would
>>>     have to stop us from doing so and I am sure they would have done
>>> so.
>>>       o e.g. if we were to start making rules that discriminated and
>>>         were to injure human rights such as expressions or association
>>>         in our policies, policies that infringed on the requirement of
>>>         openness of the Internet, they would have to do something
>>> about it.
>>>   * Without the NTIA as oversight, what is to stop us from
>>> infringing on
>>>     the human right of an Open Internet?
>>> 
>>> We do not have, as far as I can tell, a stress test that covers this.
>>> 
>>> We need, as part of WS1, a bylaw that covers this deficiency.  Despite
>>> the fact that there has been a 'vote' to exclude any mention of human
>>> rights and human rights impact analyses from the bylaws, I persist in
>>> the belief that we need a bylaw to cover this and meet the NTIA
>>> requirements.
>>> 
>>> I understand that for some I went too far in suggesting a remedy for how
>>> we might do that, within the bylaw I orinigally suggested and want to
>>> try another suggestion before I go back to writing my minority report.
>>> 
>>> /In order to enure that openness of the Internet within ICANN's mission
>>> may be maintained,  human rights impact assessments will be done/ /on
>>> ICANN policies [as appropriate]/.
>>> 
>>> 
>>> Note this is not per--se requiring us to live up to human rights, but is
>>> requiring that we understand the impact of our actions.  It can also
>>> includes the weasel words 'as appropriate' at the end if required.
>>> 
>>> Figuring how we do this then becomes the WS2 issue.
>>> 
>>> Thanks and apologies for bringing it up again, but on realizing that we
>>> do not stress test against the requirements for maintaining the human
>>> right of openness of the Internet made me realize that the deficiency
>>> was larger than just one of ignoring comments on our draft.
>>> 
>>> avri
>>> 
>>> 
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