[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 
>
>         _______________________________________________
>         Ws2-hr mailing list
>         Ws2-hr at icann.org <mailto:Ws2-hr at icann.org>
>         https://mm.icann.org/mailman/listinfo/ws2-hr
>
>      
>
>      
>
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