[CCWG-ACCT] Board remarks on Human Rights, IRP and Community IRP
Niels ten Oever
lists at nielstenoever.net
Tue Jan 19 09:50:04 UTC 2016
Hi Kavouss,
Could you please point our which concerns you mean? I think all concerns
have been discussed and addressed at length. But maybe I have missed
something. Could you point me to the thread you are talking about?
Thanks in advance,
Niels
On 01/19/2016 10:40 AM, Kavouss Arasteh wrote:
>
>
> Dear All,
>
> I fully understand the concerns raised by some of our CCWG colleagues in
> regard with the Board's recent comments on three Recs. However, at WP4,
> I remember that, Board's members expressed more or less the same
> concerned but those concerns were not taken into account when the WP4
> prepared its output.
>
> That output was discussed at CCWG and there was no reaction from the
> CCWG members on the initial Board's comments.
>
> The Board has then raised their points when commenting on CCWG 3rd
> proposal and now reiterating more or less the same concerns
>
> I am of the opinion that we need to carefully examine these comments, if
> some or all are convening we should take them into account. Those areas
> that we are not convinced, we need to enter into discussion with the
> Board's representative with a view to find an acceptable solution.
>
> Should we ignore their comments, they would submit these comments to
> NTIA together with CCWG Final proposal
>
> Another important point is that the Board is the entity that a) will
> have to implement these provisions. Should they identify any
> difficulties to implement them ,we need to examine their difficulties to
> minimize them that the provisions in question could be implementable.
>
>
>
> The other issue is should some of our output create legal difficulties
> for the Board such as involve them in obligations vis a vis other
> entities with which they contract certain action and the scope of
> implementation of those actions by the contracting parties is beyond
> the control of the Board, then what we expect from the Board to do.
>
> CCWG draft many provision purely on theoretical ground and may not have
> examined the intended or unintended consequences of these provisions
> thus the Board is legitimately allowed to comment on these provisions
> from practical implementation view points
>
> Best Regards
>
> Kavouss
>
>
> 2016-01-19 10:14 GMT+01:00 Niels ten Oever <lists at nielstenoever.net
> <mailto:lists at nielstenoever.net>>:
>
> Dear Board,
>
> I fully understand that individual board members do not speak on behalf
> of the full board in the CCWG but on their own behalf, but it greatly
> surprises me that when we reach agreement or even consensus in the CCWG
> respectively WP4 with individual board members, that the board comments
> or emails simply disregard every conversation that has been had. This
> way one can simply not have a serious conversation or negotiation.
>
> We had good discussions on this list with Markus and Bruce, but the
> email of the board repeats the same arguments as given in the comments,
> so it seems that all discussion with the board is pointless and the
> board simply wants to push its points, but even worse, is not willing to
> have a discussion based on facts, laws and examples. This is greatly
> worrying me.
>
> On the list there was a range of discussions concerning option A and
> option C, I think we should continue down the road of informed and
> constructive discussion instead of repeating the same arguments (which
> have already been addressed in bylaw language or by lawyers) which are
> not helping us reach consensus, quite the opposite.
>
> Constructively yours,
>
> Niels
>
> On 01/19/2016 03:15 AM, Theresa Swinehart wrote:
> <<snipp>
> >
> > /While the Board appreciates that the proposed interim Bylaw text is
> > intended to not place any additional obligations on ICANN, the language
> > could actually be used to greatly expand ICANN’s human rights
> > obligations. Some specific examples of concern include:/
> >
> > * /Inclusion of a human rights commitment in the Bylaws would
> > immediately allow for IRPs to be brought on human rights grounds.
> > Similarly, there could be lawsuits relying on the Bylaws language
> > filed against ICANN. When the Bylaws commitment is vaguely stated,
> > any interpretation of the Bylaws language will be against ICANN, and
> > have binding impact on the community’s ability to define a
> > framework. Neither the IRP or the Courts will have any legal reason
> > to wait for the community to complete the next step, and could make
> > their own interpretations of the language.**/
> > * /The proposed Bylaws text, with reference to “applicable law” to
> > judge the acts of ICANN and those with relationships with ICANN,
> > leaves open the question of which law should be applicable. This
> > language expands, as opposed to limits, the potential scope of human
> > rights challenges.**/
> > * /The language about “any entity having a relationship with ICANN “
> > raises the suggestion that the ICANN Bylaws have the power to bind
> > those with relationships with ICANN in how those entities respect,
> > consider or enforce human rights. ICANN does not have this power.
> > For example, registries and registrars contracted with ICANN do not
> > take on any human rights obligations because they contract with
> > ICANN. This language suggests that because they have a relationship
> > with ICANN, there are human rights concerns that they could be
> > obligated to address.**/
> > * /The language suggests that there is already a framework within
> > which ICANN processes complaints, requests or demands for ICANN to
> > enforce human rights issues, which there is not. Indeed, there still
> > appears to be divergence within the community about what should be
> > considered as human rights considerations within ICANN’s Mission.
> > Without a framework, challenges could be raised around issues that
> > are not agreed to be within ICANN’s Mission, such as access, content
> > or education.**/
> >
> > / /
> >
> > /Leaving these types of issues open puts the community, ICANN
> > stakeholders such as contracted parties, and ICANN itself at risk.
> > Courts or binding IRP panels could be used to create precedent defining
> > what human rights are within ICANN’s Mission. These determinations are
> > better left for the ICANN community to sort out, instead of being
> > imposed. Leaving these questions open for others outside of the ICANN
> > community to define is not consistent with enhancing ICANN’s
> > accountability. The Board urges that the full scope of defined work on
> > human rights should include consideration of impacts across all of
> > ICANN’s activities./
> >
> > / /
> >
> > As noted by ICANN’s legal counsel, the concern raised by the Board is
> > not primarily about an increase in the potential litigation across
> > ICANN, but rather about the /impact/ of that litigation on the ICANN
> > community, in the potential to define ICANN’s human rights obligations
> > before the community has the opportunity to complete that work. The
> > proposed limitation of applicable laws does not provide much comfort, as
> > there are no limitations of which laws will be suggested to be
> > applicable to which parties. This is not a trivial concern. Which
> > court and which law will be relied upon to decide if human rights
> > includes a requirement to make all registrant data public in an attempt
> > to protect against abusive content on websites? Or which court and
> > which law will be relied upon to require all registrant data to be made
> > private to recognize privacy interests or the potential impact to third
> > parties with which ICANN does business? It is examples such as these
> > that demonstrate why the ICANN community needs to weigh in on where
> > ICANN’s human rights obligations start and stop, before a court is
> > invited to make those determinations.
> >
> >
> >
> > *_Recommendation 7, Scope of IRP:_*
> >
> >
> >
> > The Board previously expressed concerns about the IRP being used for
> > substantive appeals from process-specific expert panels, and notes the
> > apparent agreement on the CCWG-Accountability to remove the expert
> > appeals language from the scope of the IRP. Even with this removal, the
> > Board notes that any violation of the ICANN Articles of Incorporation or
> > Bylaws that occurs in conjunction with the consideration of an expert
> > panel can appropriately be the basis of an IRP. The Board has the
> > following additional comments:
> >
> >
> >
> > 1. The IRP should not be used to determine what documents are to be
> > released as part of ICANN’s Documentary Information Disclosure
> > Policy (DIDP). If a DIDP response is in violation of ICANN’s
> > Bylaws/AoI, then an IRP can lie on the grounds of a Bylaws/AoI
> > violation. The Board notes that a more substantive appeal process
> > for the DIDP could be developed as part of the DIDP review in WS2.
> > The development of a substantive DIDP appeal process was not
> > previously identified as a WS1 effort.
> >
> >
> >
> > 2. The Board supports the CWG-Stewardship contingency that the IRP is
> > made available as part of the accountability for the performance of
> > the naming function work by PTI. The implementation of this must be
> > done carefully so as to not confuse ICANN’s obligations with PTI’s
> > obligations.
> >
> >
> >
> > 3. The Board also supports the request from the IAB that the protocol
> > parameters are excluded from the IRP.
> >
> >
> >
> > 4. The Board notes that there should be a broad range of participants
> > for the work of the IRP implementation team (including jurists and
> > those versed in international arbitration).
> >
> >
> >
> > 5. The Board discourages the use of exemptions to the already limited
> > world of “loser pays” outcomes of IRPs, such as a proposed exemption
> > for non-profit entities, as there should not be incentive for a
> > certain group of complainants to more easily bring IRPs if they are
> > not faced with the potential recourse for bringing IRPs on suspect
> > grounds.
> >
> >
> >
> > *_Recommendation 4, Scope of Community IRP:_*
> >
> > *_ _*
> >
> > The Board reiterates its concerns regarding the inclusion of expert
> > panel appeals and substantive DIDP appeals, as stated in regards to
> > Recommendation 7.
> >
> >
> >
> > The Board appreciates the community discussion regarding a carve-out of
> > the Community IRP as it relates to PDP outcomes. The Board notes that,
> > particularly with a threshold of 3 SOs or ACs, there other potential for
> > the filing of a Community IRP to pit parts of the community against
> > other parts of the community, such as countering the Board’s acceptance
> > of advice from Advisory Committees. The Board encourages the
> > CCWG-Accountability to see if there are additional protections that can
> > be introduced so that community resources are not used to challenge
> > properly taken actions from another part of the community.
> >
> >
> >
> > _______________________________________________
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> > Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> > https://mm.icann.org/mailman/listinfo/accountability-cross-community
> >
>
> --
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org <http://www.article19.org>
>
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Article 19
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