[Ws2-hr] Report to CCWG
Aikman-Scalese, Anne
AAikman at lrrc.com
Wed Nov 2 23:59:40 UTC 2016
Certainly there would be labor laws that apply to ICANN employees stationed in countries outside the U.S. which laws will have certain Human Rights implications. I think it will be important for our group to distinguish between ICANN internal processes which are subject to "applicable law" and the portion of the By-Laws that discusses international principles of Human Rights which may apply via the FOI to the extent they are within the scope of ICANN's limited mission. In this regard, I read "applicable law" to have the same meaning as "governing law."
We will have to be quite careful about taking an approach that says that ICANN is bound by foreign laws on Human Rights. For example, having an office in Brussels does not automatically mean ICANN is subject to every EU statute on Human Rights, in particular because those statutes we refer to govern acts of States. It appears that since we all recognize how powerful the Internet is, we want to bind ICANN in the way we bind member States but that is not within the scope or meaning of the By-Law.
For example, the fact that certain social media operators have agreed to sign the European Commission "Code of Conduct Countering Illegal Hate Speech Online" does not mean that ICANN should voluntarily require registry operators to comply with that Code. I think the reason this notion scares me so much is that it is quite likely that King George would have characterized Patrick Henry's speech about the tyranny of the King of England over the colonies (and the sole state-sponsored religion allowed during his reign) as impermissible hate speech. I find the provisions in the Code for appointment of individuals to monitor this online speech and provide notices to effect rapid takedowns of matter which is purely speech quite disturbing indeed. (On a level with Candidate Trump's intention to ban Muslims from immigrating to the U.S. when the U.S. is in fact a country founded principally on the notion of freedom of religion and assembly and has more descendants of immigrants than descendants of indigenous peoples.)
What would be most useful is for ICANN Legal to not only advise as to U.S. laws binding the non-profit but also the laws of the countries where ICANN has offices and how those laws may bind a foreign (California) non-profit public benefit corporation. Such foreign laws would still be in the definition of "applicable law" or "governing law". After that we can move on to principles that do not constitute "applicable law."
I certainly agree there may be "applicable law" with Human Rights implications that applies to ICANN offices outside the U.S. Such laws are quite likely to apply to ICANN Operations and not at all to the broad approach taken in the Ruggie Principles to "all its business relationships". I support the relevance of Ruggie Principle 18(b) to our work on drafting an HR-FOI. (As a reminder, Principle 18 is pasted below.) This particular Principle is exactly what ICANN should be doing going forward in the process of respecting Human Rights consistent with existing processes and protocols within ICANN as described in Annex 6, including, but not limited to, the PDP process. I believe the term "respecting" means to fully consider Human Rights principles, applicable U.S. laws (and foreign laws that apply to foreign offices) and finally, performing the balancing of Core Values that must occur pursuant to the By-Laws in each issue that is being considered. This balancing act is not to be done by the WS2 HR-FOI Subgroup and considerations will be different (and weighed and balanced differently) depending on the issue at hand. This is why it is critical for the FOI-HR to expressly recognize and affirm the Policy Development Process in the bottom-up MultiStakeholder Model.
We must provide an FOI-HR that
1. puts a priority on compliance with applicable laws. This is “baseline”.
2. Does not attempt to address each scenario or issue that could arise, but rather (in the absence of a direct legal obligation via governing law) creates a Framework for a further analysis via the Policy Development Process. (We are not supposed to be making policy or deciding on some new "applicable law" in WS2 FOI- HR.) The definition of "applicable law" is just that.
3. Will lead to joint community consensus and action because when we get beyond the operation of "applicable law", no contracted party may be bound by a provision that is not developed pursuant to a Policy Development Process. (Yes folks, this is in the Registry Agreement and it is known as “Consensus Policy.”)
4. provides helpful suggestions to the policy-making bodies (and the Board) as to how to perform the act of balancing Core Values, including balancing various Human Rights principles in relation to one another.
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Anne E. Aikman-Scalese
Of Counsel
520.629.4428 office
520.879.4725 fax
AAikman at lrrc.com<mailto:AAikman at lrrc.com>
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Lewis Roca Rothgerber Christie LLP
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-----Original Message-----
From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Niels ten Oever
Sent: Friday, October 21, 2016 4:35 AM
To: Jorge.Cancio at bakom.admin.ch
Cc: ws2-hr at icann.org
Subject: Re: [Ws2-hr] Report to CCWG
True. It seems that Sidley has used another concept of applicable law than we currently have in our definition. Therefore it will be very interesting to see the answers of ICANN legal to our questions re: our definition.
Best,
Niels
On Fri, 2016-10-21 at 09:11 +0000, Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch> wrote:
> thanks Niels and Sabine
>
> a comment: this is of course the US perspective only - applicable laws from other jurisdictions with which ICANN has sufficient connection would also apply...
>
> best
>
> Jorge
>
> Von meinem iPhone gesendet
>
> > Am 21.10.2016 um 11:06 schrieb Niels ten Oever <lists at nielstenoever.net<mailto:lists at nielstenoever.net>>:
> >
> > Dear Paul,
> >
> > I think we can now answer some of your questions. Sidley already
> > made a 'Response to Questions Regarding ICANN’s Human Rights
> > Obligations' in July 2015, you can find it attached.
> >
> > Thanks a lot to Sabine Meyer for digging this up.
> >
> > Best,
> >
> > Niels
> >
> >> On 10/20/2016 11:53 AM, Niels ten Oever wrote:
> >> Dear Paul,
> >>
> >> I completely agree we should have a clear definition of applicable
> >> law, which is what we are working on, and about which we also asked
> >> ICANN legal a question in the call before last.
> >>
> >> Where I am having a much harder time following you is when you ask:
> >>
> >>> Ask ICANN Legal what
> >>> Human Rights laws already apply to the organization.
> >>
> >> Human rights law only binds states, so I think we have the answer
> >> to that. Of course states that sign on to different treaties should
> >> reflect those commitments in their bodies of law, but there is no
> >> 1:1 relation between specific laws and specific human rights, and
> >> making a genealogy of that would seem almost impossible, or at least a Herculean task.
> >> Especially since it is hard to estimate what laws, policies and
> >> regulations all potentially could have an impact on rights such as
> >> freedom of expression, freedom of association, etc. So I am having
> >> a hard time making this link, but maybe I am missing something.
> >>
> >> All the best,
> >>
> >> Niels
> >>
> >>
> >>
> >>> On 10/19/2016 08:13 PM, Paul McGrady wrote:
> >>> Thanks Niels. By saying the group has reached some sort of
> >>> consensus that certain Ruggie principals may apply, you are
> >>> already including overviews of the various views of the members of
> >>> the group. I, for one, still have no idea if any of the Ruggie
> >>> principals would apply since I do not know whether or not they are
> >>> already subsumed by or preempted by California State law. I hope
> >>> your summary will be complete enough to include that at least one
> >>> person in the group believes we out to start with what applicable
> >>> law is already in place before we begin opining on whether or not
> >>> third party sources should govern ICANN behavior, since the bylaw makes it clear that all of our work should end up with a product that is within applicable law.
> >>> We simply have no hope at hitting the target if we insist on
> >>> having blinders on. Not telling the Plenary CCWG that we have
> >>> decided to put on blinders is an important thing for them to know
> >>> so that they can either tell us to take off the blinders and look
> >>> first at what human rights requirements already exist under
> >>> applicable law or they can consent to us trying to put the puzzle together in the dark.
> >>>
> >>> As far as my suggestions for next steps, they remain the same as
> >>> the first (among many) times I have brought up this subject. Ask
> >>> ICANN Legal what Human Rights laws already apply to the
> >>> organization. They have been operating in California for some
> >>> time now and they already know the answer to this question.
> >>>
> >>> Best,
> >>> Paul
> >>>
> >>>
> >>> Paul D. McGrady, Jr.
> >>> policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>
> >>>
> >>>
> >>>
> >>> -----Original Message-----
> >>> From: Niels ten Oever [mailto:lists at nielstenoever.net]
> >>> Sent: Wednesday, October 19, 2016 11:24 AM
> >>> To: Paul McGrady <policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>>; ws2-hr at icann.org<mailto:ws2-hr at icann.org>
> >>> Cc: thomas at rickert.net<mailto:thomas at rickert.net>
> >>> Subject: Re: [Ws2-hr] Report to CCWG
> >>>
> >>> Hi Paul,
> >>>
> >>> I am a bit hesitant to add an overview of different views of
> >>> members of the group, but I will try.
> >>>
> >>> In the meantime I would still be very interested to hear from you
> >>> how you think we could approach this, with the limited resources
> >>> of our group and in conjunction with the current understanding of
> >>> applicable law we're working on.
> >>>
> >>> Best,
> >>>
> >>> Niels
> >>>
> >>>> On 10/19/2016 05:31 PM, Paul McGrady wrote:
> >>>> Thanks Niels. I would like for your summary to include notice
> >>>> that I have consistently called for us to evaluate what human
> >>>> rights principles already apply to ICANN as a result of
> >>>> applicable California law in order to get a baseline to begin a
> >>>> gap analysis, but that the request has not been acted upon by the group. Thanks.
> >>>>
> >>>> Best,
> >>>> Paul
> >>>>
> >>>>
> >>>> Paul D. McGrady, Jr.
> >>>> policy at paulmcgrady.com<mailto:policy at paulmcgrady.com>
> >>>>
> >>>>
> >>>>
> >>>> -----Original Message-----
> >>>> From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto:ws2-hr-bounces at icann.org]
> >>>> On Behalf Of Niels ten Oever
> >>>> Sent: Tuesday, October 18, 2016 11:24 AM
> >>>> To: ws2-hr at icann.org<mailto:ws2-hr at icann.org>
> >>>> Subject: [Ws2-hr] Report to CCWG
> >>>>
> >>>> Dear all,
> >>>>
> >>>> I hope this email finds you well. Coming Friday is the deadline
> >>>> for me to report to the CCWG Plenary on the progress of our
> >>>> Subgroup. I drafted the text underneath. Your input is more than
> >>>> welcome before Friday, when I will submit it to the CCWG co-chairs.
> >>>>
> >>>> All your input is of course very much appreciated.
> >>>>
> >>>> Best,
> >>>>
> >>>> Niels
> >>>>
> >>>> 1. Executive Summary
> >>>> The CCWG WS2 Human Rights Subgroup has documented the historical
> >>>> context of the discussions on ICANNs human rights bylaw, which
> >>>> together with the CCWG report (especially Annex 6 and 12) form
> >>>> it's scope of discussion, with a Framework of Interpretation of
> >>>> the Human
> >>> Rights Bylaw as intended output.
> >>>> The subgroup is currently preparing a Framework of Interpretation
> >>>> which in due time will be presented to the CCWG plenary for discussion.
> >>>>
> >>>> 2. Description of the Issue
> >>>> 2.1 Current State of Play
> >>>> The CCWG WS2 Human Rights Subgroup started of with providing an
> >>>> overview of the discussions and agreements as they were made
> >>>> during CCWG Workstream 1 [0]. Subsequently the Subgroup has
> >>>> analyzed the UN Guiding Principles on Business and Human Rights
> >>>> (UNGPs), and their relevance and applicability for ICANN. While
> >>>> there was consensus that some principles were relevant for the
> >>>> development for a Framework of Interpretation (such as 13a and
> >>>> 15a), it was also recognized that the UNGPs have not been designed with an organization like ICANN in mind.
> >>>> Therefore a drafting team is currently iteratively designing a
> >>>> draft Framework of Interpretation which is being discussed in weekly calls.
> >>>> It is expected, that at this rate, the subgroup will be able to
> >>>> achieve
> >>> the set milestones.
> >>>>
> >>>> 2.2 Supplemental Report
> >>>> See [0]
> >>>>
> >>>> 3 Recommendation
> >>>> 3.1 Requirements for Recommendation We haven't reached consensus
> >>>> on a recommendation yet.
> >>>>
> >>>> 3.2 Rationale for Recommendation
> >>>> We haven't reached consensus on a recommendation yet.
> >>>>
> >>>> [0]
> >>>> https://docs.google.com/document/d/1rwpw9aSAqboRO2_rNkjMVJPOmYwmd
> >>>> r5B1_
> >>>> M_aNMo
> >>>> Zb4/edit?usp=sharing
> >>>>
> >>>> --
> >>>> Niels ten Oever
> >>>> Head of Digital
> >>>>
> >>>> Article 19
> >>>> www.article19.org<http://www.article19.org>
> >>>>
> >>>> PGP fingerprint 8D9F C567 BEE4 A431 56C4
> >>>> 678B 08B5 A0F2 636D 68E9
> >>>> _______________________________________________
> >>>> Ws2-hr mailing list
> >>>> Ws2-hr at icann.org<mailto:Ws2-hr at icann.org>
> >>>> https://mm.icann.org/mailman/listinfo/ws2-hr
> >>>
> >>> --
> >>> Niels ten Oever
> >>> Head of Digital
> >>>
> >>> Article 19
> >>> www.article19.org<http://www.article19.org>
> >>>
> >>> PGP fingerprint 8D9F C567 BEE4 A431 56C4
> >>> 678B 08B5 A0F2 636D 68E9
> >
> > --
> > Niels ten Oever
> > Head of Digital
> >
> > Article 19
> > www.article19.org<http://www.article19.org>
> >
> > PGP fingerprint 8D9F C567 BEE4 A431 56C4
> > 678B 08B5 A0F2 636D 68E9 <Memo_ ICANN Human Rights
> > Obligations.docx> _______________________________________________
> > Ws2-hr mailing list
> > Ws2-hr at icann.org<mailto:Ws2-hr at icann.org>
> > https://mm.icann.org/mailman/listinfo/ws2-hr
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