[Ws2-hr] When should ICANN uphold human rights?

Dr. Tatiana Tropina t.tropina at mpicc.de
Tue Sep 6 18:15:52 UTC 2016


One of my points that I didn't manage to express clearly was that
"protection" and "enforcement" include much broader range of issues than
a content regulation. Of course, getting stuck with discussing content
regulation only will lead us nowhere, indeed. In the general scheme of
things, a good framework which will draw a clear line between respect
and other two shall of course "save" us from all the enforcement and
protection issues, including content regulation.

I don't know if this is what you mean - that the debate shall be taken
out from the rabbit hole to the level of making a clear distinction
between respect, protection and enforcement, and this will solve the
particular debates on content regulation or whatever enforcement? I can
understand this approach actually.

Best

Tanya


On 06/09/16 20:05, Greg Shatan wrote:
> Tatiana,
>
> I see your point.  But I suggest that we would be better off using a
> less loaded example than "content regulation," because that will fog
> the issue we really want to deal with, which is what are "protection"
> and "enforcement" of human rights, versus what is "respect" for human
> rights. 
>
> Greg
>
> On Tue, Sep 6, 2016 at 2:01 PM, Dr. Tatiana Tropina
> <t.tropina at mpicc.de <mailto:t.tropina at mpicc.de>> wrote:
>
>     Greg,
>
>     I think the whole discussion on the "content regulation" (whether
>     we define it or not here) reflects the concerns about
>     "enforcement" and "protection".
>
>     While we can abandon the use of the term "content regulation" for
>     the sake of avoiding the maze of rabbit holes, the enforcement and
>     protection issues will be on the table anyway, and they will refer
>     to the TLD issues as well.
>
>     Fortunately, we have restrictions in the mission re content
>     regulation and in the HR bylaw re enforcement and protection. I
>     think that is enough to save ICANN from the content regulation
>     (whatever it means!). But we have to figure out where is the
>     silver line between "respect" and the no-go Human Rights watchdog
>     actions. I think the expression "content regulation" is used here
>     as it reflect the concerns that ICANN will step into this area of
>     enforcement.
>
>     Best,
>
>     Tanya
>
>     On 06/09/16 19:51, Greg Shatan wrote:
>>     Anne, It would be helpful to go back to the current AGB and see
>>     how such domains would currently be treated.  ICANN (including
>>     the GNSO PDP process) may already have dealt with that.
>>
>>     Tying this discussion to "content regulation" also gets us into
>>     other sticky wickets.
>>
>>     Is restricting the TLDs that can be applied for "content
>>     regulation"?  I would submit that it's not.
>>
>>     Is restricting the TLDs that can be applied for a violation of
>>     the right to "free expression"?  I'm skeptical about that as
>>     well, and even if it is, the right to free expression is neither
>>     boundless or immune to being balanced with other rights,
>>     including but not limited to human rights.
>>
>>     Is "content regulation" a loaded term in the ICANN context?  It
>>     is now, based on the new bylaws.  Just as ICANNnauts have used
>>     "policy" and "implementation" distinctions to to rule things in
>>     and out of scope, branding something as "content regulation" puts
>>     it in a box that at the least disfavors doing that thing,
>>     whatever it is.  More succinctly, if "content regulation" is
>>     something that ICANN doesn't do, then people will take things
>>     that they don't want ICANN to do and call them "content regulation."
>>
>>     Do we have a common understanding of what "content regulation"
>>     means in the ICANN context, or even what "regulation" means in
>>     the ICANN context?  Or even "content"?  And the corollary, what
>>     isn't "content regulation"? I really doubt it.
>>
>>     Is it within the remit of this group to further define "content
>>     regulation"?  I really don't think so.
>>
>>     We may be better off looking at creating a Framework of
>>     Interpretation (and that is our remit, broadly speaking) that
>>     does not require a definition and common understanding of
>>     "content regulation" in order to guide future reference to and
>>     implementation of the Bylaw.
>>
>>     If we follow the "content regulation" path, we are likely to end
>>     up not only down a rabbit hole, but in an entire network of
>>     rabbit holes.
>>
>>     Greg
>>
>>
>>
>>     On Tue, Sep 6, 2016 at 1:31 PM, Dr. Tatiana Tropina
>>     <t.tropina at mpicc.de <mailto:t.tropina at mpicc.de>> wrote:
>>
>>         Dear Anne,
>>
>>         A very short response with my 2c - my first thought is that
>>         the issue of
>>         "(dot)buychildporn" and alike would be the issue of (applicable)
>>         criminal law rather than human rights issue.
>>
>>         Warm regards
>>
>>         Tanya
>>
>>
>>         On 06/09/16 19:21, Aikman-Scalese, Anne wrote:
>>         > Regarding "address human rights impacts with which they are
>>         involved", I am quite stuck on the issue of "content
>>         regulation" when ICANN awards a TLD contract.  For example, a
>>         registry operator applies in the next round for
>>         "(dot)buychildporn".  I personally think there is a human
>>         rights issue here in which ICANN is directly involved within
>>         the scope of its mission and operations.
>>         >
>>         > What about a TLD application for (dot)legalizeslavery.   
>>         ICANN is very directly involved in the award of TLDs.  It
>>         signs contracts and determines when those contracts are
>>         renewed or revoked.  Very difficult indeed to see how anyone
>>         could say that ICANN would not be obligated, by this
>>         definition of "respect" to review potential adverse human
>>         rights impact of a TLD application.
>>         >
>>         > No advisory or policy recommending body in the ICANN
>>         Community currently has responsibility to review Human Rights
>>         impact in the applications for new TLDs.  There is no
>>         mechanism for doing so and arguably the implications for free
>>         speech are quite broad if we start saying that certain
>>         proposed purposes for certain TLDs (as shown in the
>>         application relevant application) have adverse human rights
>>         impacts.    Will we now place this responsibility on the GAC
>>         as a public policy matter?  What if GNSO disagrees and
>>         prefers to uphold freedom of expression even if the
>>         expression is ugly and has an adverse impact on Human Rights?
>>         >
>>         > So it appears we may not be able to deal with this within
>>         the community without establishing a Human Rights Objection
>>         process - but again what about the free speech aspects of
>>         this?  Is a Human Rights Objection process in and of itself a
>>         content regulation provision?
>>         >
>>         > Anne
>>         >
>>         > Anne E. Aikman-Scalese
>>         > Of Counsel
>>         > 520.629.4428 <tel:520.629.4428> office
>>         > 520.879.4725 <tel:520.879.4725> fax
>>         > AAikman at lrrc.com <mailto:AAikman at lrrc.com>
>>         > _______________________________
>>         >
>>         > Lewis Roca Rothgerber Christie LLP
>>         > One South Church Avenue, Suite 700
>>         > Tucson, Arizona 85701-1611
>>         > lrrc.com <http://lrrc.com>
>>         > -----Original Message-----
>>         > From: ws2-hr-bounces at icann.org
>>         <mailto:ws2-hr-bounces at icann.org>
>>         [mailto:ws2-hr-bounces at icann.org
>>         <mailto:ws2-hr-bounces at icann.org>] On Behalf Of Bastiaan Goslings
>>         > Sent: Tuesday, September 06, 2016 9:40 AM
>>         > To: Greg Shatan
>>         > Cc: ws2-hr at icann.org <mailto:ws2-hr at icann.org>
>>         > Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
>>         >
>>         > Whilst I (think I) see where you are heading, Greg - and I
>>         tend to agree, although I’m not sure what ’seeking to prevent
>>         or mitigate’ exactly means in terms of exerting pressure on
>>         third parties - the ‘resurfacing those comments’ could be
>>         helpful as I am slightly lost here.
>>         >
>>         > The way I read Ruggie’s definition of ‘respect’ is what is
>>         stated in principle #11:
>>         >
>>         > 'Business enterprises should respect human rights. This
>>         means that they should avoid infringing on the human rights
>>         of others and should address adverse human rights impacts
>>         with which they are involved.’
>>         >
>>         > It’s the ’this means’ part.
>>         >
>>         > (‘Part (b)’ in principle 13 refers to part of a
>>         ‘responsibility’ that follows, i.e. the requirement as
>>         described in this ‘part (b)’)
>>         >
>>         > Simply put, following my interpretation of Ruggie’s
>>         ‘respect’ definition, ICANN should avoid infringing on the
>>         human rights of others. And it does not have to address
>>         adverse human rights impacts with which it is not involved.
>>         >
>>         > Does that make sense? ;-)
>>         >
>>         >  -Bastiaan
>>         >
>>         >
>>         >
>>         >
>>         >> On 06 Sep 2016, at 17:43, Greg Shatan
>>         <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com>> wrote:
>>         >>
>>         >> Paul,
>>         >>
>>         >> My prior email in this thread touches on why we would not
>>         want to adopt (at least not in full) part (b) of the Ruggie
>>         Principles' definition of "respect".  Paul Twomey has also
>>         commented on this issue at length during WS1; if we could
>>         resurface those comments it would be very helpful.  The
>>         commentary around the draft documents in Google Docs also
>>         touches on this issue.
>>         >>
>>         >> Greg
>>         >>
>>         >> On Tue, Sep 6, 2016 at 11:36 AM,
>>         <Jorge.Cancio at bakom.admin.ch
>>         <mailto:Jorge.Cancio at bakom.admin.ch>> wrote:
>>         >> Good question
>>         >>
>>         >> Jorge
>>         >>
>>         >>
>>         >>
>>         >> Von: ws2-hr-bounces at icann.org
>>         <mailto:ws2-hr-bounces at icann.org>
>>         [mailto:ws2-hr-bounces at icann.org
>>         <mailto:ws2-hr-bounces at icann.org>] Im
>>         >> Auftrag von Paul Rosenzweig
>>         >> Gesendet: Dienstag, 6. September 2016 17:35
>>         >> An: 'Greg Shatan' <gregshatanipc at gmail.com
>>         <mailto:gregshatanipc at gmail.com>>; 'Nigel Roberts'
>>         >> <nigel at channelisles.net <mailto:nigel at channelisles.net>>
>>         >> Cc: ws2-hr at icann.org <mailto:ws2-hr at icann.org>
>>         >> Betreff: Re: [Ws2-hr] When should ICANN uphold human rights?
>>         >>
>>         >>
>>         >>
>>         >> Can someone better versed in this articulate for me why we
>>         would NOT want to use the Ruggie definition.  I agree that
>>         the CCWG did not intend us to necessarily adopt that
>>         definition; but they also did not necessarily intend to
>>         exclude it.  For the reasons Greg has articulated, it seems
>>         to me that it would be wise to follow accepted practice
>>         UNLESS there is a good reason not to.  Hence my question:  Is
>>         there something wrong with the way “respect” is used by the
>>         Ruggie principles that I am missing?
>>         >>
>>         >>
>>         >>
>>         >> P
>>         >>
>>         >>
>>         >>
>>         >> Paul Rosenzweig
>>         >>
>>         >> paul.rosenzweig at redbranchconsulting.com
>>         <mailto:paul.rosenzweig at redbranchconsulting.com>
>>         >>
>>         >> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>>         >>
>>         >> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>>         >>
>>         >> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>>         >>
>>         >> www.redbranchconsulting.com
>>         <http://www.redbranchconsulting.com>
>>         >>
>>         >> My PGP Key:
>>         http://redbranchconsulting.com/who-we-are/public-pgp-key/
>>         <http://redbranchconsulting.com/who-we-are/public-pgp-key/>
>>         >>
>>         >>
>>         >>
>>         >> From: ws2-hr-bounces at icann.org
>>         <mailto:ws2-hr-bounces at icann.org>
>>         [mailto:ws2-hr-bounces at icann.org
>>         <mailto:ws2-hr-bounces at icann.org>] On
>>         >> Behalf Of Greg Shatan
>>         >> Sent: Tuesday, September 6, 2016 10:58 AM
>>         >> To: Nigel Roberts <nigel at channelisles.net
>>         <mailto:nigel at channelisles.net>>
>>         >> Cc: ws2-hr at icann.org <mailto:ws2-hr at icann.org>
>>         >> Subject: Re: [Ws2-hr] When should ICANN uphold human rights?
>>         >>
>>         >>
>>         >>
>>         >> I have a good deal of sympathy with Nigel's position.  But
>>         that leaves us with a significant issue:
>>         >>
>>         >>
>>         >>
>>         >> 1.  The Bylaw uses the verb "respect."
>>         >>
>>         >> 2.  "Respect" has (at least arguably) a settled meaning in
>>         the field of corporations and human rights, from the Ruggie
>>         Principles.
>>         >>
>>         >> 3.  It was not the intention of the CCWG to adopt the
>>         Ruggie Principles' definition of "respect."
>>         >>
>>         >> 4.  It's up to this group, initially, to consider what we
>>         mean by "respect" in the context of ICANN and human rights
>>         (and our recommendations will then go back to the CCWG and
>>         out for public comment, etc.).
>>         >>
>>         >> 5.  If we do not recommend that the Ruggie Principles'
>>         definition of "respect" be adopted in its entirety, we will
>>         either:
>>         >>
>>         >>      a. End up with a definition of "respect" that varies
>>         from the
>>         >> Ruggie Principles, or
>>         >>
>>         >>      b. Need to recommend an amendment of the Bylaws to
>>         change the word "respect" to a word or phrase that is not a
>>         "term of art" in the application of human rights, and we will
>>         need to recommend an appropriate word or phrase for that purpose.
>>         >>
>>         >> 6.  Picking up on Nigel's last point, we will need to
>>         understand and explain "respect/protect/enforce" and explain
>>         that our recommendation for what ICANN should do does not
>>         fall into any of those three defined terms as they are used
>>         in the Ruggie Principles.  Frankly, we need to do this sooner
>>         rather than later, as it is really an essential part of our
>>         task, and this discussion highlights how careful we need to
>>         be in choosing certain words in our discussion as well as our
>>         recommendations.
>>         >>
>>         >>
>>         >>
>>         >> Greg
>>         >>
>>         >>
>>         >>
>>         >> On Tue, Sep 6, 2016 at 3:28 AM, Nigel Roberts
>>         <nigel at channelisles.net <mailto:nigel at channelisles.net>> wrote:
>>         >>
>>         >> Actually, I will strongly caution against using
>>         terms-of-art with divergent or 'roll-your-own' definitions.
>>         >>
>>         >> It may be tempting for ICANN to create our own variant
>>         definiton of terms like 'respect for', but this is likely to
>>         cause confusion, and even potential conflict with government
>>         actors (among others) to whom human rights law, and
>>         principles directly apply.
>>         >>
>>         >> I submit what we need to do is understand fully and
>>         explain the meaning of such terms-of-art and put them in the
>>         context of ICANN's voluntary adoption of a common, albeit
>>         basic, commitment to fundamental rights standard.
>>         >>
>>         >> Re-definition, is not the way forward, I suggest.
>>         >>
>>         >>
>>         >>
>>         >>
>>         >>
>>         >> On 06/09/16 03:12, Greg Shatan wrote:
>>         >>
>>         >> A few quick comments on the thread above.
>>         >>
>>         >> It is important that we be precise with our verbs.  The Ruggie
>>         >> Principles use three verbs, each with different meanings
>>         and with
>>         >> application to different actors: "respect," "protect" and
>>         "enforce."
>>         >>   I'm not suggesting we should adopt the Ruggie
>>         Principles' meanings
>>         >> for all of these words, but they could be useful as a
>>         starting point.
>>         >> As a matter of fact, I don't think we can or should adopt
>>         the Ruggie
>>         >> Principles' definition of "respect" in the ICANN context. 
>>         But we
>>         >> should be careful about how we use these words, and how we
>>         use other verbs.
>>         >>
>>         >> As was already noted, "uphold" is a whole new verb, with
>>         no standard
>>         >> meaning in the human rights context that I'm aware of. 
>>         "Enforce" was
>>         >> also used in this thread, but in a very different context
>>         than in the
>>         >> Ruggie Principles, where "enforcement" applies only to the
>>         activities
>>         >> of states.  We need to determine what we mean by each verb
>>         we use, and
>>         >> especially by "respect" since it appears in the Bylaw.
>>         >>
>>         >> I believe that Niels quoted from the Ruggie Principles
>>         definition of
>>         >> respect earlier in this thread when he referred to the
>>         draft FoI
>>         >> document.  I believe Paul Twomey in particular has pointed
>>         out the
>>         >> significant issues that could arise if ICANN were to adopt
>>         part (b) of
>>         >> this definition:
>>         >>
>>         >> (b) Seek to prevent or mitigate adverse human rights
>>         impacts that are
>>         >> directly linked to their operations, products or services
>>         by their
>>         >> business relationships, even if they have not contributed
>>         to those impacts.
>>         >>
>>         >> As I understand this, it requires a party to exert
>>         pressure, through
>>         >> business relationships, on third parties.   I don't think
>>         it's at all
>>         >> settled that ICANN's relationships with applicants,
>>         registries and
>>         >> registrars are "business relationships," even where these
>>         parties have
>>         >> contracts with ICANN.  But if some or all of these are
>>         "business
>>         >> relationships," this could easily be read to require ICANN
>>         to impose
>>         >> restrictions on registries and registrars, and on
>>         applicants, that
>>         >> would be extremely broad-ranging and may we be
>>         antithetical to ICANN's mission.
>>         >>
>>         >> I generally agree with John Curran regarding application
>>         concerns in
>>         >> the implementation phase.  Once the ICANN policy process
>>         has resulted
>>         >> in recommendations which are adopted, the primary focus in
>>         >> implementation needs to be faithfully carrying out the policy
>>         >> recommendations. It's fair to assume that human rights
>>         have been taken
>>         >> into account in the policy development process, along with and
>>         >> balanced against other rights and concerns, and that what
>>         results from
>>         >> the multistakeholder process should be given effect in
>>         implementation.
>>         >>
>>         >> Greg
>>         >>
>>         >> On Mon, Sep 5, 2016 at 9:11 PM, John Curran
>>         <jcurran at istaff.org <mailto:jcurran at istaff.org>
>>         >>
>>         >> <mailto:jcurran at istaff.org <mailto:jcurran at istaff.org>>>
>>         wrote:
>>         >>
>>         >>     On Sep 5, 2016, at 6:38 PM, Niels ten Oever
>>         >> <lists at nielstenoever.net <mailto:lists at nielstenoever.net>
>>         >>
>>         >>     <mailto:lists at nielstenoever.net
>>         <mailto:lists at nielstenoever.net>>> wrote:
>>         >>
>>         >>     ...
>>         >>     b) Seek to prevent or mitigate adverse human rights
>>         impacts that are
>>         >>     directly linked to their operations, products or
>>         services by their
>>         >>     business relationships, even if they have not
>>         contributed to those
>>         >>     impacts.
>>         >>
>>         >>
>>         >>     Interesting predicament.  If one imagines the
>>         potential for an
>>         >>     update to one of
>>         >>     the IANA registries that in turn poses an impact to
>>         human rights –
>>         >>     i.e. following
>>         >>     the specific guidance from the appropriate community
>>         that is
>>         >>     contracting with
>>         >>     ICANN/PTI for IANA services would result in an HR
>>         impact, then the
>>         >>     above
>>         >>     proposed responsibility (to prevent or mitigate...)
>>         would suggest
>>         >>     that ICANN
>>         >>     should to do otherwise.
>>         >>
>>         >>     Note that the event of ICANN/PTI acting contrary to
>>         the clear
>>         >>     direction of one of
>>         >>     the respective communities (names, numbers, protocols)
>>         with regard
>>         >>     to IANA
>>         >>     registry updates could easily precipitate a crisis
>>         that results in
>>         >>     the end of ICANN,
>>         >>     and thus should probably be avoided...
>>         >>
>>         >>     ICANN (including PTI) needs to place the highest
>>         priority upon
>>         >>     fidelity to the
>>         >>     outcomes of the multi-stakeholder process, since its
>>         existence is
>>         >>     predicated
>>         >>     (particularly in a post-NTIA contract environment)
>>         upon the
>>         >>     presupposition
>>         >>     of the validity of that process.  This is also the
>>         reason why I
>>         >>     noted that there
>>         >>     is a significant difference between application of HR
>>         principles
>>         >>     within the multi-
>>         >>     stakeholder policy development process when compared
>>         to later on
>>         >>     during the
>>         >>     policy implementation phases.
>>         >>
>>         >>     /John
>>         >>
>>         >>     Disclaimer: my views alone.  Feel free to use, share,
>>         or discard as
>>         >>     desired.
>>         >>
>>         >>
>>         >>
>>         >>
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