[CCWG-ACCT] [Ws2-hr] clarification re Human Right Subgroup work and FOI - Human Rights with "Considerations"

Matthew Shears matthew at intpolicy.com
Tue Oct 3 11:47:20 UTC 2017


As Anne, I would like to know both the procedure and justification for 
"new language being proposed at the plenary level with no prior 
consideration of that language at the subgroup"?

I also do not understand why we are characterizing the positions as 
"Zero Ruggie" or " All Ruggie".   As Anne notes, "David McCauley is 
quite right that not all Ruggie principles make sense for ICANN since it 
is not a typical "business" and its mission is limited, especially as to 
not interfering with content.  Much of what is contained in Ruggie 
Principles seeks to reach "all business relationships" and would thus 
exert influence over content, i.e. Ruggie would no doubt require putting 
provisions in Registry Agreements and Registrar Agreements that change 
obligations of these contracted parties to exert influence over 
registrants regarding Human Rights principles.  ... In the ICANN 
environment, following all Ruggie principles creates too broad a sweep 
by far."  These points were made in the sub-group discussions and on the 
lists on numerous occasions.  And the work of the sub-group is not Zero 
Ruggie - this is a mis-characterization.

I also do not believe that it is appropriate to rewrite the 
“Considerations” document is at the plenary level.   The considerations 
document as it stands - and agreed by the sub group - should provide all 
that is needed in terms of references to Ruggie.

Matthew

On 02/10/2017 20:54, Aikman-Scalese, Anne wrote:
>
> Thomas et al,
>
> What I am trying to understand is the procedure involved with new 
> language being proposed at the plenary level with no prior 
> consideration of that language at the subgroup.  I had made specific 
> proposals to include certain Ruggie language at the subgroup level 
> with specific reference to incorporating Ruggie Principle 18 into the 
> language that is applicable to ICANN the organization.  (In fact, I 
> have been advocating reference to Ruggie 18(b) from the beginning of 
> participating in WS2-Human Rights.)  So if we are considering new 
> language at the plenary, I want to throw in my own recommendation that 
> we refer specifically to Ruggie Principle 18 as a compromise position.
>
> I do not understand this black and white FACE-OFF as to "Zero Ruggie" 
> or " All Ruggie".  David McCauley is quite right that not all Ruggie 
> principles make sense for ICANN since it is not a typical "business" 
> and its mission is limited, especially as to not interfering with 
> content.  Much of what is contained in Ruggie Principles seeks to 
> reach "all business relationships" and would thus exert influence over 
> content, i.e. Ruggie would no doubt require putting provisions in 
> Registry Agreements and Registrar Agreements that change obligations 
> of these contracted parties to exert influence over registrants 
> regarding Human Rights principles.  While this may be appropriate for 
> a voluntary Public Interest Commitment on the part of a registry, it 
> is certainly not appropriate as a “top-down” ICANN org policy.    In 
> the ICANN environment, following all Ruggie principles creates too 
> broad a sweep by far.   In addition, there is no other "business" that 
> has used Ruggie that follows the multi-stakeholder bottom-up policy 
> process, a process unique to ICANN.
>
> Mark Carvell got the WS2 drafting team on a call at one ICANN meeting 
> with someone from the UN (with experience implementing Ruggie) and I 
> specifically asked whether she had experience implementing Ruggie with 
> an organization that operated on the bottom-up Multi-Stakeholder 
> Model.   Jorge Cancio was also in the room on this call and asked 
> several questions.  Her response was (and I paraphrase) "No, but ICANN 
> is a quasi-governmental organization and has a lot of power to 
> influence Human Rights going forward".  So for anyone who feels that 
> ICANN is a quasi-governmental organization, they will push ICANN the 
> organization in this direction without remembering the applicable law 
> limitation and the fact that ICANN is NOT A QUASI-GOVERNMENTAL 
> organization and its policy development is not the top-down process 
> followed by other non-profits.
>
> Certain Ruggie Principles may work well within the limited mission of 
> ICANN, most notably Principle 18, shown below my signature.  Others, 
> as pointed out in a very thoughtful manner by David McCauley's post to 
> the WS 2 HR list, are dangerous and would impose limits on content as 
> well as increased difficulty in enforcing property rights (including 
> Intellectual Property rights) which are not consistent with Human 
> Rights.    While I may strongly disagree with certain views that could 
> be posted at second level domains,  ICANN is not the place to try to 
> regulate them.  And I disagree with the proposition that there should 
> be an absolute right to post anonymously on the Internet as advocated 
> by Article 19.  (Although I agree that monitoring “hate speech” is a 
> very dangerous road to go down.)  It seems to me the highest principle 
> here is disclosure, in other words, “Consider the Source”.
>
> Regarding the Human Right to privacy, recently it was noted that the 
> Russian government may have been the true force and money behind 
> several Facebook ads attempting to influence U.S. elections.  So now 
> Facebook is cooperating to try to prevent that.  Why?  Because people 
> should know the bias associated with statements when there is no "fact 
> check" in place.  There is also no "fact check" on content posted at 
> second level domains and these are now “unlimited” in many respects.   
> Shouldn't people know where these opinions are coming from even if 
> it's not the Russian government?  What if it's Breitbart?  How should 
> these concerns be balanced with the right to privacy of the 
> individual? (Organizations can easily use individuals to post ads and 
> advocate opinions.  In addition, who decides whether an association of 
> individuals who believe similarly would have no right to privacy?)  
> Which second level domains were being used to influence US elections 
> and do the registrants have a right to privacy for everything said on 
> those domains as well?  Does it also apply to everything they sell on 
> the domain to raise money to place their Facebook ads?  T-shirts? 
> Coins?  Hats?  I would say, “Consider the Source” in all cases.   And 
> be concerned as to why the source does not want to disclose itself.  
> Take that into account. Is it for nefarious purposes or is it for 
> legitimate fear of unjust consequences – e.g. second level 
> registrations at .gay?
>
> As an organization,  ICANN should not overreact to Snowden and to 
> unjust laws in "outlier" governments.   Failure to balance privacy 
> rights with other considerations related to policies that develop 
> trust and confidence in the worldwide web will not only result in 
> consumer harm, it could even throw elections.   "Consider the Source" 
> is the best adage for both opinions and products offered on the 
> Internet.   This does not mean that the Spanish government should be 
> able to shut down .cat, in fact it means the opposite.  Governments 
> who stand for free speech and privacy  (and the legal systems 
> established by those governments) should be protecting and enforcing 
> those rights.
>
> If the “Considerations” document is now open to rewriting at the 
> plenary level, then shouldn't we be considering other alternative 
> proposals that were rejected by the drafting team?  The most important 
> Ruggie Principle for faithfulness to the ICANN bottom-up  
> Multi-Stakeholder model appears below my signature, that is Ruggie 
> Principle 18.  As this discussion is being developed further in the 
> plenary, please keep in mind that Ruggie calls for a Grievance 
> Procedure and that the Core Value itself contemplates both a Request 
> for Reconsideration and an Independent Review Panel process in 
> relation to Human Rights claims.
>
> Anne
>
> *Anne E. Aikman-Scalese*
>
> Of Counsel
>
> 520.629.4428 office
>
>
> 520.879.4725 fax
>
> AAikman at lrrc.com <mailto:AAikman at lrrc.com>
>
> _____________________________
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 700
>
> Tucson, Arizona 85701-1611
>
> Ruggie Principle 18.
>
> In order to gauge human rights risks, business enterprises should 
> identify
>
> and assess any actual or potential adverse human rights impacts with
>
> which they may be involved either through their own activities or as a
>
> result of their business relationships. This process should:
>
> (a)
>
> Draw on internal and/or independent external human rights
>
> expertise;
>
> (b)
>
> Involve meaningful consultation with potentially affected groups
>
> and other relevant stakeholders, as appropriate to the size of the
>
> business enterprise and the nature and context of the operation.
>
>
> Hi,
>
> On 29-Sep-17 19:59, Aikman-Scalese, Anne wrote:
>
> > So what was everyone on the plenary CCWG- ACCT call yesterday
>
> > referring to when they objected to the "compromise text" that was 
> submitted to the CCWG list without having gone through the usual 
> procedures in the subgroup?
>
> It seems to me that once an issue is described as having no consensus 
> in a subgroup and there is a declaration that none is reachable, the 
> next step is to take the question to the plenary for plenary discussion.
>
> Seems to me this is especially the case when a minority view is 
> attached to a proposed recommendation.
>
> This is not the first time a knotty issue has been brought to the 
> plenary or the first time a subgroup was given the opportunity to 
> reconsider a subgroup decision that was not accepted at the plenary level.
>
> avri
>
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-- 


Matthew Shears
matthew at intpolicy.com
+447712472987
Skype:mshears

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