[CCWG-ACCT] way forward and minority statements

Edward Morris egmorris1 at toast.net
Fri Jul 31 00:06:55 UTC 2015

Hi everyone,
 I'm sorry I wasn't able to be on the calls today, that whole needing to earn money to pay rent thing, but I thank all those who were and compliment them on the vast amount of work they did in such a short period of time. In particular I want to commend Jordan and his crew: the voting mechanisms document looks great and hopefully will prompt some meaningful discussion throughout the community and beyond that will help us to determine the correct direction in which to go.
 I want to extend my deep and very personal thanks to our three Chairs and to our wonderful staff for making it possible to extend the deadline for minority reports and opinions for 24 hours. I want to thank our Ombudsman for weighing in on the matter on such short notice. The extension was important to me and to some members of my branch of the community. Because of your action a few of our volunteers who were on calls for several hours today are able to sleep right now and will be able to begin work on their reports fresh in the morning. Of greatest importance both actions, on the extension and the insertion of minority views on voting weights, reflects positively on our leadership, our group and our respect for diversity of opinion of all types. Deeply appreciated.
 As the status of the human rights issue has confused those who attended the calls you can imagine how confused those of us who were not able to attend feel. I would, however, like to weigh in on the issue as best I can.
 I do support inclusion of language directly related to human rights in the bylaws if for no other reason I believe the NTIA, on the basis of some of Keith Drazek's posts, would like to see it and from an American political perspective it would help shield our proposal from attack from the left. People are focusing on candidates from the right in America making our transition a political issue. Should ill winds blow it very easily could become an issue in the Democratic presidential or congressional primaries. The mention of human rights provides a practical political shield against such attacks.
 As to specific language, I strongly support Keith Drazek's proposal and commend the 80% of those voting who apparently supported it on call one today. The language comes from the NTIA. We should usually favour something like that if at all possible. Of greater importance, I know what free expression is. There is highly developed case law on the subject in both the USA and EU, amongst other locales. It doesn't all agree in outlook  but consider this: Trademark law differs remarkably between jurisdictions and did to even a greater degree when the UDRP was first established. We didn't say, hey different standards, different perspectives, we don't know what it is...we defined it more through the processes we set up. The same will happen here.
 The problem with the other proposal, IMHO, is that it's harder to define. What international? What human right? What is fundamental? Now we'll eventually sort it out, we did for i.p. rights, so if it's that or nothing I'll accept it. I think we are taking a chance with both the NTIA and the American left if we consider inclusion and reject it. Still prefer Keith's more focused language.
 As for a concrete example, the type that Chris has asked for, one immediately comes to mind. In Singapore I spoke to our CEO about my fear that ICANN was getting into content regulation. He assured me we were not but let me know that sometimes it was hard to respond negatively  to pressure to do so. He gave me an example of a major media mogul who recently  tried to get ICANN to take some stuff offline. Major mogul. I was told to keep pressing the issue, that community pressure better allowed him to resist opposing pressures to censor. Well, a bylaw declaring that ICANN is committed to the free flow of information snd to free expression is an even better tool for our future CEO to use to resist pressures to censor content. In my book, that's a good thing.
 As to the way forward...what I see in the notes is: 1) agreement over the course of two meetings to include "something" in the bylaws related to human rights, 2) a 16-4 vote in meeting one in favour of Keith's proposal and 3) an 11-8 vote in meeting two in favour of Greg's proposal when it was matched against Keith's. Two comments:
 1. I note that Keith apparently was unable to attend the second call to defend and / or explain his proposal and
 2. We have a rule here that we don't make decisions on the basis of one meeting.
 Thus, if the notes fit reality I'd suggest noting in the document that  there was consensus for including "something" related to human rights in the Bylaws (this seems to be the majority opinion in two consecutive meetings) but there was a difference as to what that something should be. List the proposals that received support and let the community weigh in. Just an idea...I, of course, was unable to attend the calls today due to work commitments so could have things wrong. If so, please accept my apology.
 Thanks again to everyone who was able to attend the calls today. An impressive performance under extreme pressure. 
 Kind Regards,
 Ed Morris

 From: "James Gannon" <james at cyberinvasion.net>
Sent: Thursday, July 30, 2015 10:22 PM
To: "Robin Gross" <robin at ipjustice.org>, "Carlos Raul Gutierrez" <crg at isoc-cr.org>
Cc: "accountability-cross-community at icann.org" <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] way forward and minority statements   

Agreed Robin and I also want to strongly add my support for including Keiths language in the WS1 proposal, I was unable to make the call today but would have made a very strong intervention to support its inclusion as a very key part that was framed using NTIAs own language.  


 From: accountability-cross-community-bounces at icann.org <accountability-cross-community-bounces at icann.org> on behalf of Robin Gross <robin at ipjustice.org>
Sent: 30 July 2015 17:49
To: Carlos Raul Gutierrez
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] way forward and minority statements    

  Actually, Keith's proposed wording is very close to the international standard on this point.  UNDHR Article 19 guarantees "the right to seek, receive, and impart information and ideas through any medium and regardless of frontiers" which is another way of saying "free flow of information".  Personally, I would be fine with replacing "free flow of info" with the exact language in article 19 just quoted, but I think Keith's proposed text of "free flow of information" is a much more succinct way of saying the same thing.
    On Jul 30, 2015, at 9:16 AM, Carlos Raul Gutierrez wrote:

Dear Steve,  

Maybe Tunis agenda or anything related to the information society we live in? In any case, if we can go at least a little step further than the  strict language of 1st anmendemnt, so it sounds more modern and international would be a great  step forward.  


Carlos Raúl  On Jul 30, 2015 10:00 AM, "Steve DelBianco" <sdelbianco at netchoice.org> wrote:     The compromise text says "fundamental human rights of the exercise of free expression and the free flow of information".
 But I do not find "free flow if information" on the UN list of fundamental human rights.   Where is that right stated as fundamental?   

 From: <accountability-cross-community-bounces at icann.org> on behalf of Greg Shatan
Date: Thursday, July 30, 2015 at 11:47 AM
To: Stephanie Perrin
Cc: "accountability-cross-community at icann.org"
Subject: Re: [CCWG-ACCT] way forward and minority statements
    Nobody has to publish their confidential information to the world in order to register a domain name.  Privacy/proxy services are readily available and there is no formal proposal to take that away from anyone.  I agree we can and should take this debate elsewhere, since it is a nuanced one, and there has been much misinformation spread on the topic.  
 However, if adding the proposed language to the Bylaws changes how ICANN should " determine where the human rights obligations fall" in the policy-making process relating to this issue, then this is a very significant change. 

   On Thu, Jul 30, 2015 at 11:31 AM, Stephanie Perrin  <stephanie.perrin at mail.utoronto.ca> wrote:   No actually I am referring to scammers, spammers, doxxers, and really irritating (but not criminal) commercial elements who mine the WHOIS database to pursue innocent folks who have to publish their confidential information to the world in order to register a domain name.
A public directory is not the way to control lawbreakers who hide behind proxy services, as has been amply debated in the recent PPSAI public comments period.
Anyway lets take this debate elsewhere as it does not contribute much to the topic.  Except, I would point out, that the risk balance between the harm done by public disclosure through WHOIS has changed in the 17 years that the Internet has been growing up, and it is time to revisit who is at risk, and determine where the human rights obligations fall.  As you can tell, I believe privacy and the people who need it are more at risk today than law enforcement operations (who can find the registrars and the ISPs, and request the data they need there, in addition to more relevant info such as payment details). Disclosure of address and phone numbers is permanent and irrevocable thanks to value added services that have grown up to mine the WHOIS data.
kind regards,
Stephanie      On 2015-07-30 11:18, Greg Shatan wrote:
 Are you referring to the criminal element who knows how to use WHOIS to hide themselves?  That is certainly a huge problem and not limited to violations of criminal law -- it is also a huge problem with regard to lawbreakers whose actions are not criminal in nature.

   On Thu, Jul 30, 2015 at 11:05 AM, Stephanie Perrin  <stephanie.perrin at mail.utoronto.ca> wrote:  Totally agree Nigel, but providing access to law enforcement is not the same as publishing to the world, and the criminal element who know how to use WHOIS.  At the moment, options for nuanced disclosure are limited.

On 2015-07-30 11:00, Nigel Roberts wrote:  Stephanie

The whole debate about the right to private and family life is more nuanced.

Without turning this list into a discussion on how respect for human rights is guaranteed on this contintent, it's worth pointing out that respecting the right of privacy does NOT mean closing off domain registration data to law enforcment. Quite the opposite.

The privacy right is a qualified right -- so it CAN be interfered with

- lawfully, when necessary in a democratic society; so long as it is
- proportionate.

And I don't think that conflicts with anybody's 'marching orders'.

On 30/07/15 15:53, Stephanie Perrin wrote:  I hate to complicate this discussion, but I feel duty bound to point out
that the first human right many people think of these days with respect
to the domain name registration system is privacy.  Freedom of
expression and the openness of the Internet rolls more easily off the
tongue....but if anyone says what about privacy, the WHOIS would have to
be re-examined.  This of course conflicts with the marching orders that
the NTIA has had for ICANN since its inception.
Stephanie Perrin

On 2015-07-30 5:59, Erika Mann wrote:  In addition to Avri's points, such a provision could help as well to
ensure that future business models that relate to more sensitive
strings (.gay for example) will continue to be treated as any other


On Thu, Jul 30, 2015 at 11:42 AM, Avri Doria <avri at acm.org
<mailto:avri at acm.org>> wrote:


    Off the top of my head, I think a first thing we would have to do
    be to start understanding the impact, if any, of ICANN operations and
    policies on human rights.  Some of this work is already starting
    in the
    human rights working party (HRWP), though that is a rather informal
    beginning.  I would also think that some part of the staff would
    need to
    start taking these issues into consideration.  I do not think that it
    would cause any serious changes in the near future but would make us
    more aware as time went on, and would give us a basis for discussion
    both in the HRWP and in the ACSO and Board.

    In terms of the specific things it might limt us from, and this would
    require some analysis on specifc events, might be creating any
    kinds of
    policies or operations that forced  limitation of content, beyond the
    limitations required by law for incitement, on domain named sites.  It
    would in fact strengthen our postion in that respect.

    Most important though, it would cover a hole left by the loss of the
    NTIA backstop, on any issue concerning freedom of expression, free
    of information or openness of the Internet.


    > On Jul 30, 2015, at 11:01 AM, Chris Disspain <ceo at auda.org.au
    <mailto:ceo at auda.org.au>
    > <mailto:ceo at auda.org.au <mailto:ceo at auda.org.au>>> wrote:
    >> Keith,
    >> This looks interesting. Could we think of an example of something
    >> concrete ICANN would have to do if it made this commitment? Or
    >> something it would not be able to do?
    >> Cheers,
    >> Chris
    >>> On 30 Jul 2015, at 18:16 , Drazek, Keith <kdrazek at verisign.com
    <mailto:kdrazek at verisign.com>
    >>> <mailto:kdrazek at verisign.com <mailto:kdrazek at verisign.com>>> wrote:
    >>> Hi Avri,
    >>> In order to tie your suggestion directly to the language in
    >>> Secretary Strickling's April 2014 written congressional testimony
    >>> (included in a prior email) and to reduce concerns about scope
    >>> creep, would language along these lines be acceptable to you?
    >>>> "Within its mission and in its operations, ICANN will be
    >>>> to respect the fundamental human rights of the exercise of free
    >>>> expression and the free flow of information."
    >>> Speaking personally, I could probably support this formulation. To
    >>> be clear, I have not discussed this with the RySG, but it's
    >>> consistent with the requirements outlined by NTIA so I think it's
    >>> certainly worth considering.
    >>> I'm not advocating including this in the Bylaws, but I'm not
    >>> objecting to it either. However, if we don't reach consensus for
    >>> adding to the Bylaws, I definitely think this is worth further
    >>> consideration in WS2 and would support an explicit reference using
    >>> this or similar language and timetable for doing so.
    >>> Regards,
    >>> Keith


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