[Ws2-hr] When should ICANN uphold human rights?
Dr. Tatiana Tropina
t.tropina at mpicc.de
Tue Sep 6 21:38:10 UTC 2016
Dear Daniel,
I would rather disagree with broadening the view that much.
First of all, there are other documents from CCWG than define the tasks
of this group, than only the bylaw text. In particular, Annex 06 (p. 2)
of the CCWG-Accountability Supplemental Final Proposal on Work Stream 1
Recommendations report, that was approved, says:
"Include the following in Work Stream 2 activities:
- Develop an _FOI-HR for the Human Rights Bylaw_" (underlined by me).
The drafters of the CCWG report could have been of course more specific
and put the wording "FoI for the HR Bylaw" everywhere, but I think it
actually never dawned on them that there will be a discussion on
broadening the scope of the FoI that much. At least the wording of the
Annex 6 (and Annex 12 about WS2) indicates that it's a FoI for bylaw and
not for the whole human rights impact assessment (HRIA) within ICANN.
Secondly, even a mere interpretation of the bylaw will require a lot of
analysis of what you refer to, but extending the work of this group to
the whole HRIA is outside of our mandate I think. There was a report of
the Cross-community working party for human rights (which is not the
part of the work of this CCWG) prepared for the ICANN meeting in Dublin
that actually showed that the full HRIA, though might be a desirable
option, is a time- and resources-consuming process and might be
recommended only in a long-term. We can of course consider recommending
ICANN to carry out a HRIA as a part of the FoI, why not, but doing the
whole assessment on our own, in this group, rather looks like an
impossible task - both in terms of resources and mandate.
I think the work of this group should definitely focus on the bylaw
interpretation at the moment, because we do have to agree on what the
bylaw means first before we will make any further recommendations.
warm regards
Tatiana
On 06/09/16 20:36, Daniel Appelman wrote:
>
> I would take a broader view than the one Greg has just suggested.
> Nowhere in the Bylaw and the conditions upon which it would become
> effective does it say that the WS2 team’s activities should be
> restricted to footnoting the Bylaw or prohibited from making
> recommendations on human rights-related policies. In fact, our
> mandate is to develop and recommend a “framework of interpretation for
> human rights”. This is much broader than providing “a framework of
> interpretation for the Bylaw”. We will not be doing our job unless we
> consider what human rights are impacted by ICANN and its relationships
> with third parties and then develop recommendations as to the scope of
> ICANN’s obligations under the Bylaw to respect those human rights in
> engaging in those relationships.
>
>
>
> Dan
>
>
>
> *Daniel Appelman*
>
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> *From:*ws2-hr-bounces at icann.org [mailto:ws2-hr-bounces at icann.org] *On
> Behalf Of *Greg Shatan
> *Sent:* Tuesday, September 06, 2016 11:13 AM
> *To:* Aikman-Scalese, Anne
> *Cc:* ws2-hr at icann.org
> *Subject:* Re: [Ws2-hr] When should ICANN uphold human rights?
>
>
>
> 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
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> 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>
> [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>
>
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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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