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<font size="+2"><font face="Lucida Grande">My apologies for the
confusion, I sent my markup on the policy to the <i>NCSG
councillors</i> 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. <br>
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. <br>
Kind regards, Stephanie<br>
</font></font><br>
<div class="moz-cite-prefix">On 2016-04-18 8:57, Edward Morris
wrote:<br>
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<div><span style="font-size:14px;">James, all,</span></div>
<div> </div>
<div><span style="font-size:14px;">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. </span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">PROCEDURAL PROBLEMS</span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">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. </span></div>
<div> </div>
<div><span style="font-size:14px;">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:</span></div>
<div> </div>
<div><em><span style="font-size:14px;">"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"</span></em></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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 </span><span
style="font-size: 14px;">responded. Thank you for your
input, Stephanie.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">SUBSTANTIVE PROBLEMS</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">-</span>
<ol>
<li><span style="font-size:14px;">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?</span></li>
</ol>
<div><span style="font-size:14px;">?</span></div>
<div><span style="font-size:14px;">No.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">ICANN is best served by
a conference specific harassment policy with clearly
defined roles and responsibilities. </span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">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?</span></div>
<div> </div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">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: <a class="moz-txt-link-freetext" href="http://www.dailymail.co.uk/news/article-3534495/US-woman-jailed-insulting-United-Arab-Emirates.html">http://www.dailymail.co.uk/news/article-3534495/US-woman-jailed-insulting-United-Arab-Emirates.html</a>
as to what we are facing going forward.</span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">3. What is the purpose
of a harassment policy, and how does it intersect with
the existing standards of behavior policy? (<a
moz-do-not-send="true"
href="https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf"><a class="moz-txt-link-freetext" href="https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf">https://meetings.icann.org/sites/default/files/icann-standards_of_behavior-jul14.pdf</a></a></span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div> </div>
<div>
<div><span style="font-size:14px;">4.<em> 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.</em></span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">These question
largely go to implementation and are beyond the
scope of our current, initial, policy
reference point.</span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">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:</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">2. As harassment by
definition is directed at an individual I reject
Stephanies concerns for the section beginning
"inappropriate communication".</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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. </span></div>
<div> </div>
<div><span style="font-size:14px;">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. </span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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. </span></div>
<div> </div>
<div><span style="font-size:14px;">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. </span></div>
<div> </div>
<div><span style="font-size:14px;">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:</span></div>
<div> </div>
<div><span style="font-size:14px;">- Addition of an
opening clause</span></div>
<div> </div>
<div><span style="font-size:14px;">?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.</span></div>
<div> </div>
<div><span style="font-size:14px;">- Change the word
'colour' to 'ethnicity'</span></div>
<div> </div>
<div><span style="font-size:14px;">- Exclude the word
'disability', as that term is now considered to be
somewhat derogatory'; handicap should suffice</span></div>
<div> </div>
<div><span style="font-size:14px;">- 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;</span></div>
<div> </div>
<div><span style="font-size:14px;">-, include 'stalking'
as a prohibited offense</span></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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:</span></div>
<div> </div>
<div>
<div><span style="font-size:14px;"><em>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</em>.</span></div>
<div> </div>
<div><span style="font-size:14px;">I agree that this
would be a useful addition to the accompanying
letter as a bullet point.</span></div>
<div> </div>
<div><em><span style="font-size:14px;">2. I believe we
need a standard that requires some intent on the
part of the alleged harasser to demean,
denigrate, harass, etc.</span></em></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><em><span style="font-size:14px;">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.</span></em></div>
<div> </div>
<div><span style="font-size:14px;">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:</span></div>
<div> </div>
<div><span style="font-size:14px;">- 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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><em><span style="font-size:14px;">- “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.</span></em></div>
<div> </div>
<div><span style="font-size:14px;">I agree.</span></div>
<div> </div>
<div>
<div><br>
<em><span style="font-size:14px;">-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.?</span></em></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<br>
<span style="font-size:14px;"><strong> </strong></span></div>
</div>
<div><strong><span style="font-size:14px;">WAY FORWARD</span></strong></div>
<div> </div>
<div> </div>
<div><span style="font-size:14px;">The GNSO is late in
making this submission. We do need to act now.</span></div>
<div> </div>
</div>
<div><span style="font-size:14px;">My preference would to
have had this conversation during the past few weeks
these documents have been posted and open for
participation. </span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">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.</span></div>
<div> </div>
<div><span style="font-size:14px;">Respectfully,</span></div>
<div> </div>
<div><span style="font-size:14px;">Ed </span></div>
</div>
</div>
</div>
<div> </div>
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<hr size="2" width="100%" align="center">
<div><span style="font-family: tahoma,arial,sans-serif;
font-size: 10pt;"><b>From</b>: "Stephanie Perrin"
<a class="moz-txt-link-rfc2396E" href="mailto:stephanie.perrin@mail.utoronto.ca"><stephanie.perrin@mail.utoronto.ca></a><br>
<b>Sent</b>: Monday, April 18, 2016 4:10 AM<br>
<b>To</b>: "James M. Bladel" <a class="moz-txt-link-rfc2396E" href="mailto:jbladel@godaddy.com"><jbladel@godaddy.com></a>,
"GNSO Council List" <a class="moz-txt-link-rfc2396E" href="mailto:council@gnso.icann.org"><council@gnso.icann.org></a><br>
<b>Subject</b>: Re: [council] Letter regarding Harassment /
Conduct at ICANN Meetings</span>
<div> </div>
<font size="+2"><font face="Lucida Grande">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.<br>
Kind regards<br>
Stephanie Perrin</font></font><br>
<div class="moz-cite-prefix">On 2016-04-15 16:18, James M.
Bladel wrote:</div>
<blockquote cite="mid:D336B428.BA399%25jbladel@godaddy.com"
type="cite">
<div>Council Colleagues -</div>
<div> </div>
<div>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).</div>
<div> </div>
<div>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.</div>
<div> </div>
<div>The target is to post this letter by Tuesday, 19 APR.</div>
<div> </div>
<div>Thanks—</div>
<div> </div>
<div>J.</div>
<div> </div>
</blockquote>
<br>
</div>
</span>
</blockquote>
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