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

Tue Sep 6 18:40:04 UTC 2016

This likely depends on the answer to the questions that have been formulated to be directed to ICANN legal as to the meaning of "applicable law" and the International principles.

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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From: ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] On Behalf Of Dr. Tatiana Tropina
Sent: Tuesday, September 06, 2016 11:27 AM
To: ws2-hr at icann.org
Subject: Re: [Ws2-hr] When should ICANN uphold human rights?

I agree with Greg,

the framework shall explain what the wording of bylaw means (respect, protect, enforce, etc.); we can't create the whole human rights policy and procedural mechanisms for addressing the issues of dealing with DNS abuse vs. human rights, etc. in this group.  However, this framework shall be as clear as possible in order not to open the door for claims that ICANN shall protect human rights (I sound like a broken record here, but still I think it's of utmost importance) and shall not lead to expanding ICANN's  mission to protecting/enforcing any HR - including, er, content regulation :).

Best,

Tanya

On 06/09/16 20:12, Greg Shatan wrote:
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<mailto: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<tel:520.629.4428> office

520.879.4725<tel:520.879.4725> fax

AAikman at lrrc.com<mailto:AAikman at lrrc.com>

_____________________________

[cid:image003.png at 01D20833.6875CA70]

Lewis Roca Rothgerber Christie LLP

One South Church Avenue, Suite 700

Tucson, Arizona 85701-1611

lrrc.com<http://lrrc.com/>

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 Tijani BEN JEMAA
Sent: Sunday, September 04, 2016 11:13 AM
To: Paul Rosenzweig

Cc: ws2-hr at icann.org<mailto: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

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Mediterranean Federation of Internet Associations (FMAI)
Phone: +216 98 330 114<tel:%2B216%2098%20330%20114>
            +216 52 385 114<tel:%2B216%2052%20385%20114>
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Le 4 sept. 2016 à 18:24, Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at 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
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From: ws2-hr-bounces at icann.org<mailto:ws2-hr-bounces at icann.org> [mailto: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<mailto:kavouss.arasteh at gmail.com>>
Cc: ws2-hr at icann.org<mailto: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<mailto: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<mailto: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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