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

Tue Sep 6 18:12:32 UTC 2016

Whatever we do, we can't create gTLD policy.  We can (and indeed must)
provide guidance in how the Bylaw should be interpreted by those engaged in
gTLD policy development.  But the policy development process cannot take
place here.

We also should not be creating procedural mechanisms for when a Human
Rights impact evaluation is triggered.  Nor should we even be the one to
create or mandate a human rights impact evaluation.  Again, we should
provide guidance in how the Bylaw should be interpreted by those who might
consider whether to create such mechanisms or evaluations, and those who
create them.

We need to stick to our mandate, which is to provide a Framework of
Interpretation for the Bylaw.  To my mind, this essentially means
"annotating" the Bylaw, with what amount to a series of footnotes, so that
the language used will be used consistently by groups that come after this
one.

Greg

On Tue, Sep 6, 2016 at 2:04 PM, Aikman-Scalese, Anne <AAikman at lrrc.com>
wrote:

> Protection of registrant data is certainly important. This was studied for
> quite a long time by the Expert Working Group on WhoIs and is now the
> subject of a GNSO Policy Development Process.  As I understand it, the new
> framework for Directory Registry Services essentially proposes a “need to
> know” threshold test.  I think it would be naïve for this Workstream 2
> group to hold that Human Rights (in the form of privacy and freedom of
> expression) were not considered by the EWG or won’t be considered in the
> final outcome of the PDP.  In fact, the activities of these groups with
> respect to registrant data have sought to balance two clearly listed Human
> Rights guidelines in the UDRP – that is the privacy right and the rights of
> authors (i.e. intellectual property rights).
>
>
>
> I don’t think the work done in the FOI for Workstream 2 Human Rights is
> supposed to trump the policy work of the GNSO or the public policy advice
> of the GAC or the advice of the ALAC.  Still not sure, however, how this
> Framework of Interpretation for Human Rights can be considered anything
> other than new gTLD policy when applied to ICANN’s new gTLD activities,
> including, but not limited to,
>
>
>
> 1.       Award of registry contracts
>
> 2.       Contractual provisions required in registry (and by implication
> registrar) contracts.
>
> 3.       Adjudication of Requests for Reconsideration
>
> 4.       Adjudication of complaints filed with ICANN with respect to Spec
> 11 Public Interest Commitments
>
> 5.       Possible revocation of gTLD contract awards in relation to
> registry operators using TLDs for Human Rights abuse purposes.
>
> Separately, regarding, for example, UDRP and URS proceedings, these are
> not actually activities of ICANN.  These are dispute resolution mechanisms
> that take place outside ICANN’s operations and are less directly implicated
> in the Human Rights framework than the activities listed in 1 through 5
> above.   However, these are mechanisms developed through the ICANN Policy
> Development Process.
>
>
>
> As a practical matter, it would seem that the best this WS2 team can do is
> establish a procedural mechanism for determining when a Human Rights Impact
> review is triggered and a process where the Community conducts such a Human
> Rights Impact review.  This necessarily would have to correlate with Policy
> Development.  In the end, the various policy advisory groups may well
> disagree as they provide advice to the Board and it is the Board which
> makes the final decision, even in the new Empowered Community model.  The
> Board receives advice from many different sources.  One such source is the
> European Commission, whose advice is one reason this new By-Law exists and
> one reason this group exists in WS2.
>
>
>
> The only practical way forward from my point of view is for this group to
> define criteria as to when a Human Rights Impact evaluation is triggered
> and how it should be conducted within policy-making activities already
> going on in the Community.  This would include the five items listed above
> if indeed we are to use such general language as is proposed in the FOI in
> relation to “respect human rights” in a manner which requires ICANN to take
> action to eliminate or reduce adverse Human Rights impact in the business
> relationships and activities with which it is involved.
>
>
>
> I can compare all this to the process in the U.S. which requires an
> Environmental Impact Statement as to various business activities.   The
> criteria for a Human Rights Impact Statement might be a starting point.
> However, in developing such a Human Rights Impact evaluation, and as agreed
> in WS1, we cannot focus on just one or two or three of the relevant Human
> Rights.  None of the Human Rights documents we refer to rank these rights
> in order of priority as far as I know.  The rights of authors and
> indigenous peoples I represent are just as important as the rights of
> freedom of expression and privacy.  In fact, author’s rights (including the
> copyright rights which give the authors the exclusive right to make changes
> to their own works) may be equally important to condemning oppressive
> governmental action or exploitation of native culture for corporate or
> personal gain.  (Why would registrant information be protected for sellers
> of fake Navajo jewelry?)
>
>
>
> Again, by way of SOI disclosure, I represent the Pascua Yaqui Tribe and my
> firm represents the Navajo Nation for certain intellectual property
> matters.  (We currently have no instructions from either with respect to
> participation in ICANN so my views are my own.)  In ICANN’s activities, it
> appears to me that a Human Rights Impact analysis is ALWAYS a question of
> balancing various Human Rights.
>
> Anne
>
>
>
> *Anne E. Aikman-Scalese*
>
> Of Counsel
>
> 520.629.4428 office
>
> 520.879.4725 fax
>
> AAikman at lrrc.com
>
> _____________________________
>
> Lewis Roca Rothgerber Christie LLP
>
> One South Church Avenue, Suite 700
>
> Tucson, Arizona 85701-1611
>
> lrrc.com
>
>
>
> *From:* ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] *On
> Behalf Of *Tijani BEN JEMAA
> *Sent:* Sunday, September 04, 2016 11:13 AM
> *To:* Paul Rosenzweig
>
> *Cc:* ws2-hr at icann.org
> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?
>
>
>
> Dear all,
>
> I agree with Paul that among the main questions for us to come up with a
> Frame of Interpretation of the Human Rights in the ICANN mission would be:
>
>    -        What substance we see in the phrase human rights inside ICANN
>    Mission?
>    -        When, if ever, ICANN should give that substance (whatever it
>    may be) effect?
>
>  I can’t say they are the only meaningful questions since there will be
> subsequent questions. But let’s start with the first question: I think that
> to address it, we may begin by giving practical easy cases.
>
> The protection of the registrant data is one of the most obvious case of
> human right that falls in the ICANN mission. This may also affect the ICANN
> contract with registries/registrars
>
>
>
> ------------------------------------------------------------
> -----------------
>
> *Tijani BEN JEMAA*
>
> Executive Director
>
> Mediterranean Federation of Internet Associations (*FMAI*)
>
> Phone: +216 98 330 114
>
>             +216 52 385 114
>
> ------------------------------------------------------------
> -----------------
>
>
>
>
>
> Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig@
> redbranchconsulting.com> a écrit :
>
>
>
> Dear Farzaneh
>
>
>
> Of course your questions are meaningful.  Indeed, the ONLY two meaningful
> questions in this discussion are a) what substance we see in the phrase
> human rights? And b) When, if ever, ICANN should give that substance
> (whatever it may be) effect?
>
>
>
> Your questions clearly go to the later of these two issues.  Members of
> the group may disagree on the answers we reach, but you’re asking questions
> that have real meaning – whatever anyone may say to the contrary.
>
>
>
> Paul
>
>
>
> Paul Rosenzweig
>
> paul.rosenzweig at redbranchconsulting.com
>
> O: +1 (202) 547-0660
>
> M: +1 (202) 329-9650
>
> VOIP: +1 (202) 738-1739
>
> www.redbranchconsulting.com
>
> My 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
> <ws2-hr-bounces at icann.org>] *On Behalf Of *farzaneh badii
> *Sent:* Sunday, September 4, 2016 11:56 AM
> *To:* Kavouss Arasteh <kavouss.arasteh at gmail.com>
> *Cc:* ws2-hr at icann.org
> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?
>
>
>
> Calling something "not meaningful" is very easy. But it does not devalue
> its merits, fortunately.  Please provide a rationale for why the questions
> are not meaningful. I don't have to consult with the co-chairs to discuss
> the questions here. If the group feels that it is unnecessary to discuss
> these questions they can simply not respond, if they feel we should
> re-formulate them, then we can.
>
>
>
> The questions are to clarify what we mean by ICANN should not become a
> content regulator. The discussions that can arise responding to the
> question and sub-questions which I have posted can lead us towards a more
> tangible understanding of what we mean when we say ICANN should not become
> a content regulator and should not go out of its scope and mission when
> upholding human rights.
>
>
>
> Best
>
>
>
> Farzaneh
>
>
>
> On 4 September 2016 at 17:34, Kavouss Arasteh <kavouss.arasteh at gmail.com>
> wrote:
>
> Dear All,
>
> I do not understand the meaning and purpose of these questions.
>
> Perhaps the author of the questions could consult other two co chairs and
> come up with meaningfull text.
>
> We can not send out these questions at all
>
> Reagrds
>
> Kavouss
>
>
>
> 2016-09-04 14:25 GMT+02:00 farzaneh badii <farzaneh.badii at gmail.com>:
>
> Hi all,
>
>
>
> Sorry for sending out the questions late. I wanted to provide a gist of
> what we discussed during our call and then provide the questions but
> unfortunately, we still do not have the recording. Below are some questions
> for the group to discuss:
>
>
>
>
>
> Considering ICANN's scope and mission, when should ICANN uphold human
> rights?
>
>
>
> - In its consideration to enter into contracts with registries and
> registrars? (for example, when they are considering a new gTLD application)
>
>
>
> - During the contractual relationship with the registries and the
> registrars by obligating the registries and registrars to enforce human
> rights?
>
>
>
>
>
>
>
>
>
>
>
> Best
>
>
>
>
>
> --
>
> Farzaneh
>
>
>
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>
>
>
>
>
>
> --
>
> Farzaneh
>
> _______________________________________________
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>
>
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