[Ws2-hr] Report to CCWG

Wed Oct 19 18:46:45 UTC 2016

First, I agree completely with Paul McGrady's statements here and in prior
communications.  I would note that Niels' cover note only says that 13A and
15A are "relevant", not that they apply.  That is a distinction that
matters.  We may need to review that "consensus" in any event, since there
are still concerns with 13A and 15A that may lead to non-application, even
in the case of "relevance".

As to "applicable law."  A clear understanding of applicable law in the
context of ICANN and human rights (and not just in a generic fashion) is
critical to interpretation of the Bylaw.  "Applicable law" is mentioned
twice in the bylaw, and we can't just glide over it with a generic
definition of applicable.  I don't think we have a "current understanding"
of applicable law -- just a very high-level introductory statement, with no
meat behind it.  I think this issue needs to be expressly referenced in the
report -- not because it is a "different view of a member of the group,"
but because it is a clear open issue.

We can certainly come up with a strategy for identifying "applicable law"
that relates to human rights principles.  (Of course, it might be helpful
to decide what human rights principles we are referring to, but we can
begin the applicable law task before that's dealt with).  I agree with Paul
that the first step is turning to ICANN legal.  The second step I would
suggest is research into secondary sources that discuss the linkage between
human rights principles and the "applicable laws" that apply to ICANN.

More generally, I would like to comment on the Supplemental Report that is
attached to your email, but you have granted "view only" access.  *Can you
please give "comment" access to the Supplemental Report Google document?*
 I have a number of concerns that are best addressed in the document
itself.  Thanks.

Greg

On Wed, Oct 19, 2016 at 2:13 PM, Paul McGrady <policy at paulmcgrady.com>
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
>
>
>
> -----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>; ws2-hr at icann.org
> Cc: 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
> >
> >
> >
> > -----Original Message-----
> > From: 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
> > 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_rNkjMVJPOmYwmdr5B1_
> > M_aNMo
> > Zb4/edit?usp=sharing
> >
> > --
> > Niels ten Oever
> > Head of Digital
> >
> > Article 19
> > www.article19.org
> >
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> >
>
> --
> Niels ten Oever
> Head of Digital
>
> Article 19
> www.article19.org
>
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>                    678B 08B5 A0F2 636D 68E9
>
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