[Ws2-hr] Report to CCWG

Wed Oct 19 18:57:53 UTC 2016

Thanks Nigel.

I guess I just don't understand how the human rights obligations that ICANN
has are no longer applicable law just because they happen to be applicable
under the law.  Sorry for not being able to get on board with the circular
argument and dismissing the body of laws that actually already apply to
ICANN before we go out looking for gap fillers.  What you appear to be
proposing is that we build a wall out of spackle without looking to see if a
wall already exists and seeing if it might have some holes to patch.  

I'm not suggesting (for today's purposes) that everyone agree with me, I'm
just asking that Niels include my objection to this unfruitful approach in
his report to the CCWG so that they can decide if they want a pile of
spackle or a patch wall at the end of our process.

Best,
Paul

-----Original Message-----
From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf
Of Nigel Roberts
Sent: Wednesday, October 19, 2016 1:49 PM
To: ws2-hr at icann.org
Subject: Re: [Ws2-hr] Report to CCWG

Paul

This is where you and I part company.

On a strict construction, there is no applicable law which says ICANN has to
respect any of the human rights.  The law just says "ICANN has to follow the
law" (e.g of California).

Of course this may include obligations that the the State (i.e the United
States) and the state (i.e. California) place on private parties as a result
of its own obligation to respect human rights, but this does not engage
ICANN with fundamental rights PER SE, but with the domestic implementation
thereof.

Avri had it right.

She said that 'all this ACTUALLY means is that ICANN must follow the law',
if I am not misquoting.

HOWEVER, as I have repeatedly reminded everyone, and I am beginning to 
feel that the lack of dealing with it is intentional . . .

whilst true, (and the reason I argued strongly against that formulation 
in WS1) that is not /necessarily/ the end of the story.

'Applicable law' can include international law (which does not normally 
bind domestically) that ICANN voluntarily agrees to be bound by.

And ICANN has, it appears, done so.

The analysis I prefer, which engages ICANN squarely in fundamental 
rights obligations is that of the learned Panellist, Judge Schwbel in 
ICM Registry Inc -v-ICANN (ICDR Case No. 50 117 T 00224 08) in 
paragraphs 57-58.

 From which it is clear that ICANN's founders have bound ICANN in law 
(i.e. California law) to respect international law.

Unless someone wishes to advance a different legal authority for 
"applicable law".

On 19/10/16 19:13, 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
>
>
>
> -----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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>
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