[Ws2-hr] When should ICANN uphold human rights?
Dr. Tatiana Tropina
t.tropina at mpicc.de
Tue Sep 6 18:44:46 UTC 2016
Yes, Anne, sure, we definitely have to answer the question of the
meaning of the "applicable law" in the FoI.
Best,
Tanya
On 06/09/16 20:40, Aikman-Scalese, Anne wrote:
>
> 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>
>
> _____________________________
>
> 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] *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>
>
> _____________________________
>
> 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
>
>
>
> -----------------------------------------------------------------------------
>
> *Tijani BEN JEMAA*
>
> Executive Director
>
> 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>
>
> -----------------------------------------------------------------------------
>
>
>
>
>
> 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
>
> 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/
>
>
>
> *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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