[council] Letter regarding Harassment / Conduct at ICANN Meetings
Stephanie Perrin
stephanie.perrin at mail.utoronto.ca
Mon Apr 18 15:07:39 UTC 2016
My apologies for the confusion, I sent my markup on the policy to the
/NCSG councillors/ list, which is a Skype list including the chair of
NCSG, on Thursday night. I told that list I would circulate it to the
NCSG Policy Committee once I received their input. I received none, and
in the meantime got the email from James with the Tuesday cutoff.
My apologies also for the lateness. However, I do think this document
should be discussed at Council if it is an agreed position, and we
really have not had much of a discussion on it. I look forward to
community input once Akram has gathered the various comments.
Kind regards, Stephanie
On 2016-04-18 8:57, Edward Morris wrote:
> James, all,
> I am in receipt of Stephanie's comments on the proposed harassment
> letter. I encourage the Council to consider many of these suggested
> changes to be the equivalent of hostile amendments to the work
> produced by our small Council working group and to reject most of
> them, both on procedural and substantive grounds, The document
> produced by the small Council working group led by Jennifer is far
> superior to one incorporating changes proposed at the last minute by
> Stephanie and should be used as our references note going forward.
> PROCEDURAL PROBLEMS
> A note about how we have worked on this matter as a Council. At the
> Marrakech meeting I raised the issue of sexual harassment. A small
> working group was formed consisting of four Councillors from the NCSG
> - myself, Stefania, Marilia, David - and one Councillor from the
> Registrars in Jennifer. All Councillors were invited to join this
> group. Mary Wong kickstarted the group into action with an e-mail of
> March 25th. Jennifer immediately took the lead and on March
> 28th produced the prototype of the document now before us. I
> immediately suggested a few minor changes to the document, which were
> accepted. There were 17 email exchanges amongst the members of the
> small working group and staff prior to release of the final document
> to the general Councll list.
> Once on the Council list suggestions and comments made on a timely
> basis by Donna and Phil, were acknowledged by Jennifer, and
> incorporated into the document. Stephanie responded on April 6th with
> some general comments that I believe could are best summarised by this
> part of her post:
> /"It is my view that we need a privacy policy more than a harassment
> policy because I feel that inappropriate conduct is already in fact
> covered by by our acceptable conduct policy"/
> This represents a completely different view than that adopted by the
> small working group. I personally reject both the premise and the
> conclusion. Harassment is a specific type of conduct that has
> connotations beyond the term "inappropriate". It is not adequately
> covered by current policy. I should note that although
> Stephanie's comments have been on list for twelve days, no one other
> Councillor has posted agreement with Stephanie's view that ICANN
> should deal with the situation at hand through it's acceptable conduct
> policy.
> As Stephanie's suggestions were a bit different in format than the
> other comments and not as easy to adapt to the document at hand on
> April 6th Jennifer asked Stephanie to produce a red line version of
> her comments. On April 7th Stephanie agreed. This project had a
> completion deadline of April 14th. No other Councillor objected to the
> small group proposal on list between the 7th and 14th. Then on our
> monthly call Stephanie verbally objected to our draft, the time frame
> was extended and we waited through the weekend for her input.
> Finally, eleven days after she agreed to produce a red line document,
> four days after the initial project deadline, Stephanie has
> responded. Thank you for your input, Stephanie.
> If this material had been produced in a timely manner it could have
> stimulated discussion on the list, it could have stimulated discussion
> on our call. Instead, I view this as no more than a way of almost
> hijacking the process, I'm sure without any malicious intent -
> Stephanie has impeccable integrity, at the very end so in the end
> the positions she espouses are adopted out of necessity rather than
> as a result of considered debate. I'm somewhat resentful that I now
> have to spend a few hours of my Monday responding to wholesale
> suggestions of change that were promised weeks earlier. If the Council
> is to allow this type of behaviour then why would any of us join
> small working groups? Why not just wait until the end, past the
> deadline, of all projects and then object to things when you have the
> most leverage? I don't believe this is an optimal way to conduct our
> business, whatever the reason.
> I also take exception to Stephanies claim that "I attach a markup
> version of both documents. I have circulated them to the NCSG". As
> far and I can tell, that simply is not true. I have not seen these
> documents prior to this post to the Council list. I've checked both
> the NCSG discussion list and the archives of the NCSG policy committee
> list and no such "circulation" seems to have occurred. Those are our
> only two official mailing lists in the NCSG. I also note that the
> majority of NCSG Councillors were on the small team that Jennifer so
> aptly led. The NCSG had ample opportunity as a group to object to the
> proposed reference note in a timely manner and chose not to do so.
> SUBSTANTIVE PROBLEMS
> 1. Stephanie has created at the outset a list of questions. Some of
> these have suggested outcomes that we did consider early in the small
> group and rejected, others would have been appropriate to consider at
> that time. Stephanie chose not to join this group and to challenge our
> decisions only at this late date.
> -
>
> 1. While events at ICANN55 focused on the need for a Conference
> Harassment Policy, would it not be prudent to create a Harassment
> Policy that covers all of ICANN’s activities?
>
> ?
> No.
> Let's be clear: ICANN already has a variety of harassment policies.
> There is a harassment policy, required by California law, that covers
> employees. There is the Expected Standards of Behaviour which may or
> may not cover some forms of harassment. That policy was found to be
> flawed in the most recent highly publicised situation. I should note
> that both parties in that matter support the development of a
> conference sexual harassment policy.
> ICANN is an outlier in not having a conference harassment policy. The
> International Association of Conference Centres recommends as standard
> industry practice that a "conference specific, clearly defined policy
> against harassment be posted at prominent entry points". I see no
> reason for ICANN to reject standard industry practice in this regard.
> Meetings introduce the concept of "clear and present danger" into the
> equation. The standards for behaviour of those in close physical
> proximity to one another may necessarily need to be bit more
> stringent than that of a more general policy.
> Harassment itself is also different than general conduct standards
> in that for harassment to occur it must be directed towards a specific
> individual. There is also a mens rea component of harassment not
> present in most of the items contained in the Expected Standards.
> ICANN is best served by a conference specific harassment policy with
> clearly defined roles and responsibilities.
> That said, I certainly would have no objection if a phrase akin to "we
> hope that the development of a conference harassment policy is only
> the first step towards developing a wider policy against harassment in
> all of ICANN's activities and affairs" were added to the letter if
> that would meet with Stephanie's approval.
> 2. If not, how does one deal with harassment that continues after
> an event, or starts online or through conference calls, meetings, etc.
> outside the actual face to face conferences?
> Through normal processes. This is not an either / or situation. Some,
> including myself, believe that the lack of a conference specific
> policy is a hole in an otherwise satisfactory policy requiring civil
> behaviour. I should also note that ICANN is not a state. There are
> also opportunities to deal with these matters through normal channels.
> However, given that ICANN does hold meetings in countries where
> harassment may be permitted legally, a specific conference harassment
> policy does provide some de facto assurance of some protection within
> the meeting site. It is a challenge. See, for
> example: http://www.dailymail.co.uk/news/article-3534495/US-woman-jailed-insulting-United-Arab-Emirates.html
> as to what we are facing going forward.
> 3. What is the purpose of a harassment policy, and how does it
> intersect with the existing standards of behavior policy?
> (https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf
> The purpose of a conference harassment policy is to create policy
> which produces an environment in which all attendees are comfortable
> in and is one which attendees are free from harassment of any kind. It
> does so by delineating specific conduct that is prohibited and by
> establishing clear reporting obligations and requirements. This is far
> greater than the current ESB requirement that everyone act civilly
> towards one another.
> I would also opine that the current policy does not work when applied
> to this type of incident and the lack of a conference policy of a
> specific nature exposes ICANN legally.
> 4./How does one differentiate between inappropriate remarks or
> actions, and harassing, demeaning, and abusive behavior? Many
> harassment policies scope the offensive activity or actions in terms
> of repeated behavior that forms a pattern, or if only a single event,
> an event that is of very significant proportions (eg physical
> contact). A policy must be clear enough that when Implementation
> guidance and training is provided, our global multicultural audience
> will be able to understand clearly when conduct and speech are
> unwelcome or inappropriate, and when they are very offensive to normal
> sensibilities and constitute harassment. Defining normal will be
> challenging./
> These question largely go to implementation and are beyond the scope
> of our current, initial, policy reference point.
> Regarding Stephanies criticisms of specific points contained in the
> "ICANN Conference Harassment Policy - Key Points" distributed by James
> on 15 April at 22:55 UTC:
> 1. I support the text as written without any changes, although
> certainly believe it could be approved. Please remember this is a mere
> reference point.
> 2. As harassment by definition is directed at an individual I reject
> Stephanies concerns for the section beginning "inappropriate
> communication".
> 3. As Stephanie rightly notes ICANN as a private corporation has no
> control over whether an accused party seeks legal redress for any
> perceived harm. The prohibition against retaliation is a necessary
> clause that encourages victims to come forward but as with all
> policies written by a private corporation the effect of said policy is
> limited to the corporations remit. That is true of this entire
> document. I woulds not want to limit the language as operation of law
> already constrains it's reach and I would prefer that the
> anti-retaliatory language be as broad as legally possible. The current
> language meets that goal. I should note the same concerns have been
> expressed concerning whistleblower policies and have been found to be
> lacking.
> 4. I reject Stephanie's assertion that you need to "train a couple of
> thousand conference attendees to recognise and prohibit this type of
> conduct". That is FUD. This policy empowers those who witness such
> behaviour to report it given that often the power relationship
> involved makes it impossible for the victim to report it. I note this
> is mere reporting; no judgement as to validity of the complaint is
> being made.
> Although I would prefer to keep the language as is, I would have no
> objection to changing "should immediately" to "are encouraged to
> immediately" if that would address some of Stephanie's concerns.
> 5. I not only reject Stephanie's assumption that the Ombudsman is or
> should be the first line for reporting, our small group, at my
> request, deleted this concept from our proposal. First, the Ombudsman
> in not empowered by the ICANN Bylasws to conduct investigations into
> relations between parties that have no direct contractual relationship
> with ICANN. That he did in the most recent publicised incident is
> being considered for litigation (against ICANN) by one of the parties
> involved and has prompted me to write a letter to Steve Crocker asking
> for an explanation / justification (response yet to be received).
> There are people within ICANN corporate in the human relations
> department who have expertise in this area and who I believe are far
> better qualified to handle these types of complaints than the
> Ombudsman. That said, I would prefer for ICANN corporate, not us, to
> establish the reporting structure in line with other responsibilities
> and expertise of their employees.
> 6. The line "ICANN will protect the confidentiality of individual(s)
> reporting suspected violations of the incident(s) to the extent
> permissible and with due regard for procedural fairness" is good
> language and should be retained. Stephanie's proposed substitution is
> too limiting ('investigations and interviews conducted under this
> policy"), too defined ("confidential") and would expose ICANN to
> greater legal liability should a party be dissatisfied. The text in
> the proposed document is read as a "best effort" clause and would not
> expose ICANN legally except in the case of gross negligence.
> 7. I agree with the clause requiring staff members who become aware of
> "any form of harassment or potential incidents": to report them to the
> front line employee given responsibility for these matters. This is
> not just good policy in terms of stopping harassment, this is good
> policy in terms of limiting ICANN's exposure to lawsuits resulting
> from such incidents.
> I do not believe putting links to nonspecific government harassment
> policies has any value whatsoever. ICANN is not a government, it is a
> private corporation. We are not trying to create, in this action, a
> comprehensive harassment policy, but rather a conference harassment
> policy. Links to specific conference harassment policies, of course,
> would be most welcome if anyone wants to spend the time to find and
> link to them.
> As stated, I would prefer to keep the letter and reference document as
> written. I respectfully disagree with Stephanie on many of her
> comments and by timing her response so late there really isn't time to
> engage in a full conversation as would be desirable.
> However, if it is deemed permissible for Stephanie's last minute
> changes to the proposed document to be accepted over my objection then
> I respectfully request the following additional changes be made:
> - Addition of an opening clause
> ?This policy aims to strengthen and safeguard the ICANN working
> environment so that it is a welcoming and enabling diverse environment
> for stakeholders from all backgrounds.
> - Change the word 'colour' to 'ethnicity'
> - Exclude the word 'disability', as that term is now considered to be
> somewhat derogatory'; handicap should suffice
> - change 'sex' in all instances to 'gender'; 'sex' has connotations
> that does not fully describe the wide array of possible sexual
> identification categories that 'gender' does;
> -, include 'stalking' as a prohibited offense
> Again, my preference would be to go with the document as is. I will
> remind everyone that this is merely a reference note to provide an
> example of what a policy might look like. There will be ample
> opportunity for the community to weigh in on the actual proposed
> policy at a later date.
> I note also that Phil has made some additional recommendations today
> to strengthen the proposal. My principle objection is timing
> (although in a different procedural environment I would consider them
> friendly amendments) - I am generally in agreement , at least in
> part, with all but one of his proposed changes. I will note that
> Phil's earlier recommendations have been incorporated into the
> document. His current proposals and my responses:
> /1. What procedural due process protections will be established for
> parties to the dispute, and what standard of proof shall be required
> for an adverse finding/.
> I agree that this would be a useful addition to the accompanying
> letter as a bullet point.
> /2. I believe we need a standard that requires some intent on the part
> of the alleged harasser to demean, denigrate, harass, etc./
> Harassment by legal definition has a mens rea component. I would not
> object to making this clear in the policy document but do not believe
> it is necessary.
> /3. policy needs to be further developed to make clear that conduct of
> a criminal nature (assault, indecent exposure, rape) is outside the
> scope of any harassment policy and is to be reported by ICANN to the
> proper authorities./
> We need to be careful here. It may not be clear whether an activity is
> or is not illegal. I would not want to create any legal obligation for
> ICANN to report any alleged crime. I'd suggest that rather than put
> this in out policy proposal we add another bullet point to the letter
> akin to:
> - We believe procedures need to be developed so that those matters
> that are violations of law are reported immediately by ICANN or the
> complaining party to the proper authorities.
> I think we need to note this but I would be hesitant in a rushed
> manner to come up with exact wording within the proposed "key points".
> I'm fine with a bullet point in the letter.
> /- “You should report any actions that you believe may violate this
> policy no matter how slight the actions might seem” I would suggest
> deleting everything after the word “policy”, leaving more discretion
> to a target or witness to decide when to invoke whatever procedures
> may be created to deal with harassment./
> I agree.
>
> /-Finally, I would suggest that the term “ICANN Conference” needs to
> be clearly defined to make clear its breadth. That is, does it only
> cover incidents that occur at the official meeting site or are other
> locations and activities covered; such as meeting sponsor social
> events, official meeting hotels, etc.?/
> Good point. I would limit the policy to the meeting itself, I don't
> believe ICANN should limit the free expression rights of sponsoring
> organisation, but am open to other ideas.
>
> **
> *WAY FORWARD*
> The GNSO is late in making this submission. We do need to act now.
> My preference would to have had this conversation during the past few
> weeks these documents have been posted and open for participation.
> I have no objection to changes in the documents to which there is no
> on list opposition. I have, however, objected to several of the
> changes proposed for substantive policy reasons. These documents have
> been available and open for comment for about two weeks. The deadline
> for this project was supposed to be last Thursday. Unless more
> widespread opposition is voiced, I would suggest the document as
> presented in James weekend e-mail be considered approved and sent.
> That said, I have no objection to requested changes by Stephanie and
> Phil that have not met with any opposition by EOB today to be
> incorporated in the final document. Where challenged, however, I
> believe we should stick with the original language in the absence of
> more widespread opposition.
> I want to thank all my my colleagues for their work on this and, in
> particular, Jennifer, whose leadership and hard work have made this
> happen. I have very much enjoyed working with her.
> Respectfully,
> Ed
> ------------------------------------------------------------------------
> *From*: "Stephanie Perrin" <stephanie.perrin at mail.utoronto.ca>
> *Sent*: Monday, April 18, 2016 4:10 AM
> *To*: "James M. Bladel" <jbladel at godaddy.com>, "GNSO Council List"
> <council at gnso.icann.org>
> *Subject*: Re: [council] Letter regarding Harassment / Conduct at
> ICANN Meetings
> Thanks for circulating this James. I agree with Phil's recent
> comments, but I attach a markup version of both documents. I have
> circulated them to the NCSG, but I think it is fair to say there are
> divergent views on this topic, so these are my own personal comments.
> As I have expressed, I think we are rushing into a complex area here
> and I do hope that once Akram comes up with a draft, there will be
> ample opportunity to discuss and refine the document.
> Kind regards
> Stephanie Perrin
> On 2016-04-15 16:18, James M. Bladel wrote:
>> Council Colleagues -
>> As discussed during yesterday’s call, we intend to send a high-level
>> letter to ICANN (Akram) on behalf of the GNSO Council, thanking him
>> for his blog post and drawing his attention to statement from the
>> NCUC and the draft policy created by Jennifer and others. (On this
>> latter point, I’ve edited the Key Points document to reflect the most
>> recent comments on the thread).
>> If you have any comments or edits to the letter or “Key Points”
>> document, please post these to the list by EOD Monday, 18 APR. Edits
>> could include changes/additions to the language, as well as inclusion
>> of other materials or links to statements from other groups.
>> The target is to post this letter by Tuesday, 19 APR.
>> Thanks—
>> J.
>
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