[CCWG-ACCT] way forward and minority statements

Avri Doria avri at acm.org
Thu Jul 30 06:10:30 UTC 2015


Quite a option you offer.

I think that there is another way to look at a minority report.  There
is a lot in the report that is good.  What I need to decide is whether
the inability and unwillingness to commit ourselves to human rights is a
fatal flaw in an otherwise good report.

The choice I need to make is whether I trust ICANN to adhere to human
rights considerations without NTIA oversight.  We can quibble about the
degree to which their obligations as a right duty bearer apply to ICANN
because of our contract. Sidley has explained that there are:

> As a general matter, in the absence of its federal contract, ICANN’s
> obligations for human rights will remain generally consistent although
> there will be some variation in particulars.  

So the the issue on the law depends on the extent of the variations. 
They may or may not end up being significant. Perhaps this needs to be
studied and understood before we move further.

The current report text states:

> All participants in these discussions agreed that ICANN should respect
> fundamental human rights in all of its operations 

I find this hard to accept given we are not willing to put any mention
of Human rights in the core values part of it bylaws.  Not even a simple
statement like:

    ICANN will be committed to respect fundamental human rights in its

Or even a constrained statement like:

    Within its mission, ICANN will be committed to respect fundamental
    human rights in its operationsespecially with regard to the exercise
    of free expression or the free flow of information.

The unwillingness to make such straight forward commitments, which are
being denied by a stated need to study the issue is something I do not
understand.  If we are committed to respect for fundamental human
rights, then lets say so!  We can work out the details in WS2, but the
unwillingness of the majority, especially the commercial majority, to so
committ is a warning bell.

What I have no doubt about in that in the current situation is that if
we were to start to stray into human rights infractions in terms of
freedom  of expression and other curtailments of speech, discriminatory
behaviors, curtailment of the freedom of assembly and association &c.
NTIA in its current role would do something to help us find a better
path.  I also have little doubt that if NTIA or the US Congress were to
focus on our inability to commit to basic freedoms in our bylaws they
would have a harder time accepting our solutions for WS1.  I wonder,
given that we have had this discussion, whether the congress will ask us
about our commitment to basic freedoms in a future hearing.  I wonder
what kind of answer our spokespesons will give?

Without NTIA as the backstop and with ICANN's primary profit motives, I
am not so sure anything could stop us without a bylaws commitment to
honoring human rights.  Money would win out, it almost always does at
ICANN.  Even now we are discussing discrimination within the
organization because, e.g. the SOs bring in the money they should have
more say.  How can we be assured that in a future without an NTIA
backstop ICANN would not turn into an even more commercially controlled
organization?  I absolutely believe we need a committment to human
rights in our bylaws to preserve ourselves as a just institution.

If this deficiency a fatal flaw in the recommendation?  If we really do
need more study, would it be better to delay longer while we study this
for WS1 inclusion? It might just be.  We do have 4 more years of
possible contract extension.



On 29-Jul-15 16:57, Thomas Rickert wrote:
> All,
> as you will remember, we have discussed our suggested way forward and
> the question of minority statements in our call yesterday.
> Nonetheless, we would like to offer some more information on this.
> We would like to present to the community not only a draft report, but
> a consensus proposal. We do hope to have reached consensus on all
> questions so there will be no need for an additional determination of
> consensus after the public comment period unless the community input
> requires us to revisit substantial parts of our proposal.
> 1. We suggest you file a minority statement if you object to the
> overall set of recommendations. The minority statement will be
> referred to in an appendix to the report.
> 2. We suggest you provide us with your dissenting opinion to
> individual questions so that we can include it in the body of the
> report. We already heard from individuals that they appreciate this
> option as they do not wish their objection to an individual aspect of
> the report to be perceived as opposition to the overall approach we
> are taking. If you consider using this option, please use the
> following format to help add value to the proposal:
> i. raise your concern
> ii. provide a rationale for your concern
> iii. please offer an alternative suggestion
> In order for your statements (both minority statements and dissenting
> opinions on individual questions) to be published at the same time as
> the report will be published, they need to be received by rapporteurs,
> co-chairs or staff by 12.00 UTC on the 31st of July.
> Thanks,
> Thomas
> PS: In case we do not reach consensus but can only present a draft,
> the situation is not different from the first report and we will not
> have minority statements for such report. According to our charter,
> minority statements offer a chance to oppose to a consensus. In the
> absence of consensus, there is no need for minority statements. Please
> note that in this case, we will still allow for minority statement to
> be added to our final report.
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> Accountability-Cross-Community at icann.org
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